EHRM, 20-10-2011, nr. 13279/05

The Court observes at the outset that the present case differs from those it has had the opportunity to examine in the past in that what is at issue here is not conflicting decisions in the case-law of courts of final jurisdiction within the same branch of the judicial system, but rather alleged disparities between the judgments of two hierarchically unrelated, different and independent types of court.

That being so, it considers that having been formulated in a substantially different context from the instant case, the criteria and principles developed in the above-mentioned case-law cannot be transposed as such to the present case, which, although it concerns a type of complaint on which the Court has already had the opportunity to rule, nevertheless raises a new legal question. They may, however, guide it in its assessment of the circumstances of this case. The Court shall therefore first consider whether there have been conflicting court decisions in the present case; if so, it will then examine whether, in the light of the particular circumstances of the present case, those conflicting decisions amounted to a violation of Article 6 § 1 of the Convention.

The Court reiterates that giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue (see Erol Uçar v. Turkey (dec.), no. 12960/05, 29 September 2009). In the present case it appears from the evidence before the Court that the difference the applicants complained of resides not in the factual situations examined by the different domestic courts, which were identical, but in the application of the substantive law and the resulting res judicata.

In this regard, the Court points out that the parties submitted several decisions by the national courts concerning the families of servicemen who died in the same plane crash as the applicants' son. On reading those decisions, it notes first of all that the servicemen concerned fall into two categories: those whose mission was to fight terrorism, and the crew of the aircraft (see paragraphs 17 and 25–26 above).

It further notes that the different cases brought before the ordinary administrative courts on which the applicants rely in their allegation concerned appeals by the families of victims of the accident in question against the decision of the Turkish Pension Fund rejecting, inter alia, their applications for a pension under Law no. 3713.

Lastly, the Court observes from the materials in the case file that fourteen of the cases brought by the victims' families were examined on the merits by the ordinary administrative courts, which established a causal link between the plane crash and the fight against terrorism — a sine qua non condition for entitlement to the rights provided for in section 21 of Law no. 3713 — without making any distinction in respect of the type of duties performed by the deceased servicemen (see paragraphs 25–26 above).

The ordinary administrative courts thus found in favour of the claimants; their interpretation of the conditions of application of Law no. 3713 differed from that of the Supreme Military Administrative Court, which, in the applicants' case, found no such causal link and dismissed their application to set aside the decision of the Pension Fund (see paragraph 16 above).

This difference of interpretation resulted in the different legal treatment by the two types of court of what were essentially similar cases. Diametrically opposite conclusions were thus reached by the ordinary administrative courts (Ankara Administrative Court and Supreme Administrative Court) and the Supreme Military Administrative Court. The Government have, moreover, accepted the existence of these different interpretations (see paragraph 47 above). It is worth noting here that in the decision pronounced by the Supreme Military Administrative Court in the applicants' case no mention was made of any differences capable of distinguishing their case from those examined by the ordinary administrative courts (see paragraph 16 above).

Clearly, then, the Court is faced with a very rare case where the circumstances and consequences of the same event — a plane crash — were interpreted differently by the domestic courts. Having said that, it should be remembered that the mere finding of a conflict of case-law is not sufficient in itself to constitute a violation of Article 6 of the Convention. The Court has to measure the impact of the conflicting case-law in terms of the principle of a fair trial and, in particular, against the yardstick of the principle of legal certainty.

First of all, the Court observes that the issue of conflicting decisions in the circumstances of the present case is linked to the very organisational structure of the Turkish court system, where ordinary administrative courts, with general jurisdiction, coexist alongside a military administrative court, with special jurisdiction (see paragraphs 20–21 and 45 above). This, however, is just one example among others of the variety of legal systems existing in Europe, and it is not the Court's task to standardise them (see, mutatis mutandis, Taxquet v. Belgium [GC], no. 926/05, § 83, 16 November 2010).

Furthermore, in cases arising from individual petitions the Court's task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X, and Taxquet, cited above, § 83).

Here, therefore, the Court's task is not to review, in abstracto, the compatibility with the Convention of Turkey's court system, with its two different types of administrative court, but to determine, in concreto, the effect of the resulting conflict of case-law on the right to a fair trial enshrined in Article 6 § 1 of the Convention (see, for example and mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257-B).

The Court observes, first of all, that the impugned conflicting judicial decisions concerning the interpretation of section 21 of Law no. 3713 were the result of simultaneous intervention by the ordinary administrative courts and the Supreme Military Administrative Court in cases raising essentially the same issue (see paragraphs 62–66 above). This reveals a conflict of jurisdiction between these two types of court which were called upon to give judgment, in parallel, on the same legal issue.

The Court therefore agrees with the Chamber's finding that the origin of the conflicting decisions the applicants complained of lies in the fact that these different courts failed to respect the boundaries of their respective jurisdictions (see Chamber judgment, § 57).

Having said that, in view of the Government's arguments that there was no doubt whatsoever that the Supreme Military Administrative Court had jurisdiction in the case at issue here (see paragraph 45 above), the Court notes that the Jurisdiction Disputes Court — established, inter alia, to settle conflicts of jurisdiction between the ordinary, administrative and military courts (see paragraphs 22 and 24 above) — has had occasion to rule on the question of the areas of jurisdiction of the ordinary administrative courts and the Supreme Military Administrative Court.

In so doing, it ruled that the Supreme Military Administrative Court had jurisdiction in cases concerning military pensions or allowances (see paragraphs 31-32 above). Indeed, when the 4th Chamber of the Ankara Administrative Court declared that the action brought by the applicants was outside its jurisdiction, and was rather a matter for the Supreme Military Administrative Court (see paragraph 14 above), it referred to the Jurisdiction Disputes Court's judgment of 14 May 2001 (see paragraph 31 above).

The Chamber found in this connection that the intervention of the Jurisdiction Disputes Court had helped to settle the divergence between the positions of the ordinary administrative courts and the military administrative court as regards their respective spheres of competence, bringing to an end, in principle, the intervention of the ordinary administrative courts in an area that fell under the jurisdiction of the military administrative court (see Chamber judgment, §§ 57–58).

The Grand Chamber, however, does not share these conclusions. Having regard to the evidence adduced by the parties, it observes that in spite of the intervention of the Jurisdiction Disputes Court and its ruling that the Supreme Military Administrative Court had jurisdiction in the type of case in question, the ordinary administrative courts continued to accept cases similar to that of the applicants and to rule on the merits (see paragraphs 25–27 above).

According to the Government's explanations at the hearing before the Grand Chamber, while ‘decisions of principle’ of the Jurisdiction Disputes Court concerning jurisdiction are binding, its other judgments merely have the value and authority of precedents meant to guide the domestic courts in their deliberations. A decision is ‘of principle’ when it actually states as much.

In the present case the Court notes that the judgments of the Jurisdiction Disputes Court to which the Government referred (see paragraphs 44-45 above) in support of the jurisdiction of the Supreme Military Administrative Court were not decisions of principle, and that they have failed to impose themselves, by their sheer power of persuasion, on all the ordinary administrative courts, which have continued to examine — and to allow — claims similar to the applicants' (see paragraphs 25–27 above).

Having said that, and no matter what weight the ordinary administrative courts elected to give to the judgments of the Jurisdiction Disputes Court in question, the Court emphasises that in any event the role of the Jurisdiction Disputes Court is not to resolve conflicts of case-law. Although it does have the power to settle conflicts of judgments between different courts, it can do so only in the exceptional situation where the judgments are so irreconcilable that their execution would result in a denial of justice for the party concerned (see paragraphs 24 and 30 above), a situation which does not arise in the instant case. Its intervention thus has no bearing on the complaint the applicants have brought before the Court.

The Court points out that it has already indicated that, once identified, conflicts of case-law should, in principle, be settled by establishing the interpretation to be followed and harmonising the case-law, through mechanisms vested with such powers (see among many other authorities, Beian (no. 1), cited above, §§ 37 and 39). It should be noted, however, that these principles were laid down in cases where the divergent interpretations the Court had to examine had come about within the same branch of the judicial system, in connection with legal provisions in respect of which a Supreme Court could exercise its unifying powers (see paragraph 59 above — see also, amongst other authorities, Beian (no. 1), cited above, § 37, and Schwarzkopf and Taussik, cited above).

While such considerations obtain where the conflicting decisions arise within a hierarchical judicial structure, they cannot be transposed to the present case. The Court considers that in a domestic legal context characterised, as in the present case, by the existence of several Supreme Courts not subject to any common judicial hierarchy, it cannot demand the implementation of a vertical review mechanism of the approach those courts have chosen to take. To make such a demand would go beyond the requirements of a fair trial enshrined in Article 6 § 1 of the Convention.

What is more, the Court points out that the lack of a common regulatory authority shared by the Supreme Courts — in this case the Supreme Administrative Court and the Supreme Military Administrative Court — capable of establishing the interpretation these courts should follow, is not a specificity of the Turkish judicial system. Numerous European States whose judicial systems feature two or more Supreme Courts have no such authority (see paragraph 34 above). In itself, however, this cannot be considered to be in breach of the Convention.

The Court further considers that in a judicial system like that of Turkey, with several different branches of courts, and where several Supreme Courts exist side by side and are required to give interpretations of the law at the same time and in parallel, achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty.

As case-law is not unchanging, but on the contrary, evolutive in essence, the Court considers that the principle of good administration of justice cannot be taken to impose a strict requirement of case-law consistency (see Unédic, cited above, § 73, and Atanasovski, cited above, § 38). However, it is the Court's duty to ensure that this principle is upheld when it considers that the fairness of the proceedings or the rule of law require it to intervene to put a stop to the uncertainty created by conflicting judgments pronounced by different courts on one and the same question. The legal certainty it then aims to achieve must nevertheless be pursued with due respect for the decision-making autonomy and independence of the domestic courts, in keeping with the principle of subsidiarity at the basis of the Convention system.

In this connection, the Court reiterates that interpretation is inherent in the work of the judiciary. However clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation (see, amongst other authorities, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 39, ECHR 1999-IV). Determining what law to apply and in what conditions is part of this individualised approach to the law.

This means that two courts, each with its own area of jurisdiction, examining different cases may very well arrive at divergent but nevertheless rational and reasoned conclusions regarding the same legal issue raised by similar factual circumstances. It must be accepted that the divergences of approach that may thus arise between courts are merely the inevitable outcome of this process of interpreting legal provisions and adapting them to the material situations they are intended to cover.

These divergences may be tolerated when the domestic legal system is capable of accommodating them. In the instant case, the Court considers that the supreme courts in question — the Supreme Administrative Court and the Supreme Military Administrative Court — have the possibility of settling the divergences themselves, either by deciding to take the same approach, or by respecting the boundaries of their respective areas of jurisdiction and refraining from both intervening in the same area of the law.

Just as it is not for the Court to act as a court of third or fourth instance and review the choices of the domestic courts concerning the interpretation of legal provisions and the inconsistencies that may result, nor is it its role, it would like to emphasise, to intervene simply because there have been conflicting court decisions.

For the Court, where there is no evidence of arbitrariness, examining the existence and the impact of such conflicting decisions does not mean examining the wisdom of the approach the domestic courts have chosen to take (see Vinčić and Others, cited above, § 56; Işık v. Turkey (dec.), no. 35224/05, 16 June 2009; and Ivanov and Dimitrov v. ‘the Former Yugoslav Republic of Macedonia’, no. 46881/06, § 32, 21 October 2010). As stated above (see paragraph 50), its role in respect of Article 6 § 1 of the Convention is limited to cases where the impugned decision is manifestly arbitrary.

Therefore, even though the interpretation made by the Supreme Military Administrative Court of section 21 of Law no. 3713 was unfavourable to the applicants, that interpretation, however unjust it might appear to them compared with the solution adopted by the ordinary administrative courts, does not, in itself, constitute a violation of Article 6 of the Convention.

It should also be noted — in the light of the Jurisdiction Disputes Court's finding (see paragraphs 31–32 above) that the Supreme Military Administrative Court was the body with jurisdiction to examine the type of dispute at issue here — that in the circumstances of the present case the decision of the 4th Chamber of the Ankara Administrative Court that it did not have jurisdiction in the applicants' case was not at all arbitrary.

Nor can the applicants claim to have been denied justice as a result of the examination of their dispute by the Supreme Military Administrative Court, or the conclusion it reached. The decision adopted by the Supreme Military Administrative Court in the applicants' case fell within the bounds of its jurisdiction and there is nothing in it that, in itself, would warrant the intervention of the Court.

It should be noted that the judgments concerning the applicants were duly reasoned, in terms of the facts and the law (see paragraphs 16 and 19 above), and that the interpretation made by the Supreme Military Administrative Court of the facts submitted to it for examination cannot be said to have been arbitrary, unreasonable or capable of affecting the fairness of the proceedings, but was simply a case of application of the domestic law.

In view of the above, the Court reiterates that it must avoid any unjustified interference in the exercise by the States of their judicial functions or in the organisation of their judicial systems. Responsibility for the consistency of their decisions lies primarily with the domestic courts and any intervention by the Court should remain exceptional.

In the present case the Court considers that the circumstances require no such intervention and that it is not its role to seek a solution to the impugned conflict of case-law vis-à-vis Article 6 § 1 of the Convention. In any event, individual petition to the Court cannot be used as a means of dealing with or eliminating conflicts of case-law that may arise in domestic law or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts.

Accordingly, the Court finds that there has been no violation of Article 6 § 1 of the Convention.