Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 4692/09
Nurgül UÇAR and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 24 June 2014 as a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Helen Keller,
Paul Lemmens,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and, Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 19 January 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, whose names and places of residence are set out in the appendix, are Turkish nationals. They are represented before the Court by Ms Deniz Karakurt, a lawyer practising in Izmir.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants were the mayors of 190 municipalities at the time of lodging their application with the Court.
4. On 6 March 2008 the Parliament of Turkey adopted Law no. 5747 “on establishing districts within the boundaries of metropolitan municipalities and amending various laws”, which was published in the Official Gazette of 22 March 2008 and entered into force on that date. Law no. 5747 stipulated, inter alia, that the legal personality of a number of municipalities, including those headed by the applicants, would be abolished and that either those administrative units would become villages/neighbourhoods and join other municipalities, or a certain number of them would together constitute new municipalities. Law no. 5747 further stipulated that the legal personality of those municipalities, as well as their authority and rights, would continue to exist until the next general local elections were held.
5. On 9 April 2008 three members of parliament from the CHP, the main opposition party, Mr H.S. Okay, Mr K. Anadol and Mr K. Kılıçdaroğlu, the party leader, made an application to the Constitutional Court of Turkey. The MPs requested the Constitutional Court to repeal certain provisions of Law no. 5747, including those applicable to the applicants’ municipalities. The MPs claimed, inter alia, that there was no public interest in abolishing the legal personality of certain municipalities and that Law no. 5747 had been adopted so that the governing party, the AKP, could win the local elections in the areas in issue. They further submitted that a referendum should have been held in the municipalities in question, in accordance with the Law on Municipalities (Law no. 5393), and that Law no. 5747 was in contravention of the provisions of the Law on Elections in Local Administrations (Law no. 2972) and the Constitution. On this last point, the MPs submitted that, according to Article 67 of the Constitution, a legislative amendment concerning elections would not be applicable to elections held within one year of the entry into force of those amendments and that the local election process of 2009 would start on 1 January 2009, in line with the provisions of Law no. 2972. They therefore considered that Law no. 5747 should not be applied to the local elections of 29 March 2009.
6. On 31 October 2008 the Constitutional Court rendered its decision in the case (case no. 2008/34, decision no. 2008/153) and dismissed the case in so far as it concerned the municipalities headed by the applicants. The court noted at the outset that the MPs had not requested the repeal of the provision which concerned the entry into force of Law no. 5747, and that therefore their submissions regarding the compatibility of Law no. 5747 with Article 67 of the Constitution could not be examined.
7. As regards the submission that a referendum should have been held in accordance with Law no. 5393 and that the provisions of Law no. 5747 were incompatible with Law no. 2972, the Constitutional Court held that a legal norm could be reviewed only in the light of the relevant constitutional norm and not in relation to another legal norm. It further held that the legislature had the authority to make, amend and repeal laws and the responsibility to maintain harmonisation between laws. The Constitutional Court concluded that it could therefore not review the compatibility of the provisions of Law no. 5747 with those contained in Law no. 5393 and Law no. 2972.
8. Lastly, as to the allegations that the provisions of Law no. 5747 lacked public interest and that this law had been passed for political reasons, the Constitutional Court noted at the outset that it had the authority to examine whether certain legislation had been passed with the purpose of serving the public interest. The court further noted that the question of whether a legal norm was compatible with the needs of the country was political in nature and that the legislature was permitted a degree of discretion on that point. The court considered that it could not assess the existence of a public interest on the basis of the political choice of the legislature alone. The Constitutional Court further noted that in accordance with the Constitution, the administrative units were to be determined, through laws, by the legislature and taking into account their geographical features, economic circumstances and need for public services. The court observed that the petition lodged by the MPs for the repeal of certain provisions of Law no. 5747 did not contain any concrete argument as to how those provisions did not serve the public interest but were the result of the political considerations of the governing party. The Constitutional Court also observed that the aim of the changes brought about by Law no. 5747 was the efficient functioning of the public services provided by the local administrations and the efficient and productive use of public resources by the central administration. The Constitutional Court held that there was no evidence demonstrating that the amendments had been made with the aim of acquiring political or personal gain. The court lastly noted that since, in accordance with Law no. 5747, the legal personality of the municipalities in question, as well as their authority and rights, would continue to exist until the first general local elections were held, the legislature had respected the will of the electorate regarding the last five-year election period in the areas concerned.
9. On 29 March 2009 the local elections were held and as a result the legal personality of the municipalities headed by the applicants ceased to exist on that day.
B. Relevant domestic law
10. Article 7 of the Constitution provides:
“Legislative Power
Article 7 - Legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation. This power cannot be delegated.”
11. Articles 123 and 127 of the Constitution provide:
“A. Fundamentals of the Administration
1. Integral Unity and Public Legal Personality of the Administration
Article 123 - The administration forms a whole with regard to its structure and functions, and shall be regulated by law.
The organisation and functions of the administration are based on the principles of centralisation and local administration.
Public corporate bodies shall be established only by law, or by the authority expressly granted by law.”
12. Article 127 of the Constitution provides:
“C. Organisation of the Administration
2. Local administrative bodies
ARTICLE 127 - Local administrative bodies are public corporate entities established to meet the collective local needs of the inhabitants of provinces, municipal districts and villages, whose decision-making organs are elected by the electorate as determined by law, and whose principles of structure are also determined by law.
The formation, duties and powers of the local administration shall be regulated by law in accordance with the principle of local administration.
...
The procedures dealing with objections to the acquisition by elected organs of local government or their status as an organ, and their loss of such status, shall be resolved by the judiciary. However, as a provisional measure, the Minister of the Interior may remove from office those organs of local administration or their members against whom an investigation or prosecution has been initiated on grounds of offences relating to their duties, pending judgment.
The central administration has the power of administrative trusteeship over the local governments in the framework of the principles and procedures set forth by law with the objective of ensuring the functioning of local services in conformity with the principle of the integral unity of the administration, securing uniform public service, safeguarding the public interest and meeting local needs in an appropriate manner.”
13. Articles 3 and 59 of the Law on Municipalities (Law no. 5393) provide, in so far as relevant, as follows:
“Definitions
Article 3 - The terms listed below shall have the following meanings wherever they are used in this Law;
a. Municipality: A public-law legal entity with administrative and financial autonomy, whose purpose is to meet the collective needs of the local residents and whose decision-making body is made up of members elected by direct suffrage.
...”
“Income of the Municipality
Article 59 – The Municipality draws its income from the following sources;
a. Taxes, levies, charges and contributions, as specified in the laws.
b. Its share of the tax income of the general budget.
c. Payments to be made by the administrations within the general and special budgets.
...
f. Income from interest and fines.
...”
COMPLAINTS
14. The applicants submitted the complaints below both on behalf of the municipalities that they head and in their personal capacity as voters.
15. They complained under Article 6 of the Convention that the proceedings before the Constitutional Court had been unfair.
16. They further maintained that abolition of the legal personality of their municipalities under Law no. 5747 and the decision of the Constitutional Court constituted a breach of their rights under Articles 10, 11 and 14 of the Convention.
17. The applicants lastly complained under Article 3 of Protocol No. 1 to the Convention that Law no. 5747 had been passed for political reasons and its aim had not been to serve the public interest, and that the Constitutional Court’s decision had violated their right both to be elected as mayors and to choose their representatives freely as ordinary citizens.
THE LAW
A. In so far as the application was lodged on behalf of the municipalities headed by the applicants
18. The applicants, on behalf of the municipalities that they represented, maintained that the abolition of the legal personality of their municipalities and the Constitutional Court’s decision had breached their rights under Articles 6, 10, 11 and 14 of the Convention, as well as Article 3 of Protocol No. 1.
19. The Court reiterates that under the settled case-law of the Convention institutions, local administration authorities are public-law bodies which perform official duties assigned to them by the Constitution and by substantive law. They are therefore quite clearly governmental organisations (see Ayuntamiento de Mula v. Spain (dec.), no. 55346/00, ECHR 2001-I). The Court further observes that according to the constitutional and legislative definitions in Turkish law, municipalities are public-law legal entities whose purpose is to meet the collective needs of the local residents and whose decision-making bodies are made up of members elected by direct suffrage. Their budgets consist mainly of allocations from the State’s budget and other public revenue such as taxes and fines. The Court therefore finds no reason to depart from its well‑established case-law to the effect that local authorities lack locus standi to lodge an application under Article 34 of the Convention (see Döşemealtı Belediyesi v. Turkey (dec.), no. 50108/06, 23 March 2010, and Ayuntamiento de Mula, cited above).
20. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. In so far as the application was lodged by the applicants in their personal capacity
21. The applicants complained under Article 6 of the Convention that the Constitutional Court had failed to render a fair decision in the case brought by the members of parliament.
22. The Court reiterates that a person cannot complain about a violation of his or her rights in proceedings to which he or she was not a party (see, mutatis mutandis, Nosov v. Russia (dec.), no. 30877/02, 20 October 2005). In any event, even assuming that the Constitutional Court’s decision concerned the applicants’ right to stand as candidates or to choose their representatives in the local elections, and that this decision had a direct bearing on the applicants’ situation, the proceedings in question could only be deemed to relate to the applicants’ political rights, and not their “civil” rights within the meaning of Article 6 of the Convention (see Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000‑I, and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV). Accordingly, Article 6 does not apply.
23. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
24. The applicants further complained under Articles 10, 11 and 14 of the Convention that on account of the enactment of Law no. 5747 and the Constitutional Court’s decision of 31 October 2008, their rights to freedom of expression, freedom of association and freedom from discrimination had been breached.
25. The Court reiterates that Article 34 of the Convention does not permit individuals to complain against legislation in abstracto simply because they feel that it contravenes the Convention. In principle, it is not sufficient for individual applicants to claim that the mere existence of the legislation violates their rights under the Convention; it is necessary that the law was applied to their detriment. Nevertheless, Article 34 entitles individuals to contend that legislation violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see Colon v. the Netherlands (dec.), no. 49458/06, 15 May 2012, and the cases cited therein).
26. In the present case, the applicants failed to demonstrate in what way the adoption of Law no. 5747 and the decision of 10 October 2008 had an adverse effect on their rights guaranteed under Articles 10, 11 and 14 of the Convention. In particular, they did not claim that they had been prevented from continuing their political activities or expressing their opinions, or that they had been subjected to discrimination in relation to their political activities. The Court therefore considers that the applicants cannot claim to be victims of the alleged violation of Articles 10, 11 and 14 of the Convention.
27. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
28. The applicants lastly submitted that Law no. 5747 had been passed for political reasons and its aim had not been to serve the public interest, and that the Constitutional Court’s decision had been in violation of their rights to be elected mayor and to choose their representatives freely as ordinary citizens. They relied on Article 3 of Protocol No. 1 to the Convention in this regard.
29. The Court firstly reiterates that the term “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53 Series A no. 113, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999‑I).
30. On the other hand, the Convention organs have found that local authorities, such as the municipal councils in Belgium, the metropolitan county councils in the United Kingdom, the regional councils in France, and the municipal councils, district councils and regional assemblies in Poland do not form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (see Clerfayt, Legros v. Belgium, no. 10650/83, Commission decision of 17 May 1985, Decisions and Reports 42, p. 212; Booth-Clibborn v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236; Malarde v. France, (dec.) no. 46813/99, 5 September 2000; and Mółka (dec.), cited above). Furthermore, the power to make regulations and by-laws which is conferred on the local authorities in many countries is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1 to the Convention (see Mółka (dec.) and Cherepkov (dec.), both cited above).
31. The Court notes that the Constitution of Turkey confers the exercise of legislative power on the Turkish Grand National Assembly, that is, the Parliament (see Article 7 of the Constitution). Moreover, municipalities in Turkey are the repositories of powers of an administrative nature concerning the organisation and provision of local services. These powers are granted by statute which defines closely and restrictively the municipalities’ fields of application (see Law no. 5393). Thus, they do not exercise legislative power within the meaning of the Constitution of Turkey. The Court therefore concludes that municipalities do not form part of the legislature of Turkey. Accordingly, Article 3 of Protocol No. 1 is not applicable to local elections held in order to constitute their decision-making bodies and, as a result, is not applicable to the present case.
32. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Guido Raimondi
Registrar President
Appendix
- Nurgül UÇAR, lives in IZMIR
- Ramazan ACAR, lives in DENIZLI
- Fadil AKA, lives in IZMIR
- Halim AKAN, lives in MANISA
- Caner AKDEMİR, lives in KAYSERI
- Mehmet AKGÜL, lives in KONYA
- Mustafa AKGÜL, lives in BURDUR
- Remzi AKKOÇ, lives in TOKAT
- Mustafa AKMAN, lives in ANTALYA
- Mehmet Ali AKTAY, lives in CORUM
- Mehmet Ali ALAR, lives in KÜTAHYA
- Riza ALTAYLI, lives in ORDU
- Mehmet ALTUN, lives in KONYA
- Salih APLAK, lives in YOZGAT
- İrfan ARAS, lives in IZMIR
- Dursun ARTVİN, lives in KONYA
- Ömer AVŞAR, lives in CANKIRI
- Hayati BAHÇEVAN, lives in CORUM
- Ali BAKIRCI, lives in CORUM
- Ahmet BAL, lives in CORUM
- Şevket BARKIR, lives in BALIKESIR
- Mehmet BAŞALAN, lives in AYDIN
- Selahattin BAYDAR, lives in GÖMÜRGEN
- Sami BAYIKBAŞI, lives in KAYSERI
- Fuat BAYIR, lives in KONYA
- Halil İbrahim BAYIR, lives in MANISA
- Hanefi BAYRAKÇI, lives in ISPARTA
- Hilmi BİRCAN, lives in KÜTAHYA
- Mustafa BÖLEK, lives in IZMIR
- Orhan BORA, lives in IZMIR
- Hüseyin BOZHALİL, lives in ERZURUM
- Ali BOZKURT, lives in MANISA
- Mehmet ÇAKAR, lives in AYDIN
- Sefer ÇAKIN, lives in TOKAT
- Süleyman ÇAKIR, lives in MANISA
- Hazim ÇALIŞ, lives in KONYA
- Cumhur ÇATIK, lives in AYDIN
- Bayram ÇAVDAR, lives in KONYA
- Özdemir ÇAYLI, lives in IZMIR
- Osman ÇELİKEL, lives in KONYA
- İbrahim ÇELİKKAYA, lives in MANISA
- Nafiz CERAN, lives in KAYSERI
- Birol CESUR, lives in KONYA
- İbrahim CEYHAN, lives in CANKIRI
- Nevzat ÇIĞIR, lives in KONYA
- İbrahim CİNKILIÇ, lives in IZMIR
- Veli DAL, lives in IZMIR
- Ali DANACIOĞLU, lives in IZMIR
- Nebi DELEN, lives in KONYA
- Ahmet DEMİRER, lives in YOZGAT
- Ahmet DEMİRER, lives in YOZGAT
- Saban DEMİRÖZÜ, lives in CANKIRI
- İsmail DENİZ, lives in SIVAS
- Ali DEVECİ, lives in SIVAS
- Mustafa DİNÇAY, lives in ANTALYA
- Gürsel DİRBİSOĞLU, lives in IZMIR
- Mehmet DOĞAN, lives in YOZGAT
- Musa DOĞAN, lives in KONYA
- Satılmış DOĞAN, lives in CANKIRI
- Ali DOĞDU, lives in IZMIR
- İsmail DÖNMEZ, lives in KÜTAHYA
- Hidayet DUDUOĞLU, lives in CANKIRI
- Tahsin DUKMAZEK, lives in KONYA
- Mehmet DURUKAN, lives in KAYSERI
- Sami EKER, lives in KAYSERI
- Abdurrahman ELLİALTI, lives in KONYA
- Hüseyin ERDAL, lives in SIVAS
- Şemsettin Necati EREN, lives in IZMIR
- Feyzullah ERGİN, lives in IZMIR
- Mehmet ERGÜL, lives in KONYA
- Abdullah EROĞLU, lives in KONYA
- Haldun ERTOK, lives in IZMIR
- Mustafa ERTUĞRUL, lives in KAYSERI
- Feti GEZEK, lives in MANISA
- Mustafa GÖKÇİL, lives in KONYA
- Mehmet GÖKŞEN, lives in CORUM
- Rasim GÖLBAŞI, lives in KAYSERI
- Halil GÜLEÇ, lives in MANISA
- Mehmet Nuri GÜMÜŞ, lives in KUTAHYA
- Leyla GÜVEN, lives in ADANA
- Yasin HALAT, lives in MANISA
- Mevlüt İBİŞ, lives in KONYA
- Ridvan İLKAYA, lives in KAYSERI
- Uğur İMREN, lives in KAYSERI
- Şerafettin IŞIK, lives in CORUM
- Kemal İSKEN, lives in ISTANBUL
- Dursun KARA, lives in KONYA
- Mehmet KARA, lives in KONYA
- Resül KARA, lives in KONYA
- Ömer KARAAĞAC, lives in CANKIRI
- Abdurrahman KARABULUT, lives in KONYA
- Bahri KARACA, lives in CORUM
- Zeki KARAKAŞ, lives in TOKAT
- Mustafa KARAKAYA, lives in CANKIRI
- Osman KARAN, lives in MANISA
- Hasan KARAPEHLİVAN, lives in MANISA
- Bayram KARAŞAHİN, lives in CANKIRI
- Ali Hikmet KARASU, lives in KÜTAHYA
- Ahmet KARATAŞ, lives in CANKIRI
- Osman KARATEKE, lives in CORUM
- Veli KASAP, lives in IZMIR
- Aziz KAYA, lives in IZMIR
- İbrahim KAYA, lives in MANISA
- Celal KAYIR, lives in KAYSERI
- Abdurrahman KESİR, lives in KONYA
- Mehmet KESKİN, lives in IZMIR
- Yaşar KESKİN, lives in ORDU
- Erdal KIRAN, lives in TOKAT
- Eşraf KORKMAZ, lives in KONYA
- Bahadir KÖSE, lives in KAYSERI
- İbrahim KÖSE, lives in KONYA
- Namik KURT, lives in KONYA
- Ziya KUZ, lives in KONYA
- İbrahim MELKİ, lives in KONYA
- Mustafa MUFTUOĞLU, lives in DENIZLI
- Osman ODABAŞI, lives in KONYA
- Ramazan ÖĞÜT, lives in KONYA
- Ali OĞUZ, lives in IZMIR
- Mustafa OKAY, lives in CORUM
- Fahrettin ÖKSÜZ, lives in KONYA
- Ramazan ÖLMEZ, lives in KONYA
- Ahmet ORHAN, lives in KAYSERI
- İbrahim ÖZDEMİR, lives in IZMIR
- Necdet ÖZDEMİR, lives in CANAKKALE
- Hüseyin ÖZER, lives in AYDIN
- Mehmet ÖZER, lives in Konya
- Hamdi ÖZSEÇER, lives in CORUM
- Ali Galip ÖZSÜMBÜL, lives in KAYSERI
- İbrahim ÖZTAŞ, lives in AYDIN
- Ayhan ÖZTÜRK, lives in TOKAT
- Mustafa PEHLİVAN, lives in Manisa
- Süleyman PEKMEZ, lives in KONYA
- Mehmet Ali PETEK, lives in KONYA
- Ahmet POYRAZ lives in ISTANBUL
- Vahap POYRAZ, lives in IZMIR
- Bülent RÜZGAR, lives in IZMIR
- Duran SAFRANTI, lives in KAYAPINAR
- Nail ŞAHAN, lives in KAYSERI
- Aslan ŞAHİN, lives in CORUM
- Kadir ŞAHİN, lives in CANKIRI
- Mustafa ŞAHİN, lives in KONYA
- Mustafa ŞAHİN, lives in KONYA
- Ünal ŞAHİN, lives in KAYSERI
- Ramazan ŞAMAT, lives in KONYA
- Ahmet SARIHAN, lives in CANKIRI
- Haci Mustafa SARIYÜCE, lives in CORUM
- Bülent SAYAR, lives in AYDIN
- Hayati SAYDAM, lives in IZMIR
- Ali SELÇUK, lives in KONYA
- Ahmet ŞENTÜRK, lives in CORUM
- Ömer ŞENTÜRK, lives in IZMIR
- Mehmet ŞEREFLİOĞLU, lives in KAYSERI
- Kazim SERTDEMİR, lives in KONYA
- Ahmet SOBACIOĞLU, lives in CORUM
- İsmet SOLAK, lives in AYDIN
- Mehmet SOYOĞLU, lives in IZMIR
- Bahattin TAŞ, lives in ORDU
- Orhan TAŞPINAR, lives in KAYSERI
- Mustafa TEPELİ, lives in BALIKESIR
- Muzaffer TINAZTEPE, lives in IZMIR
- Musa TÖK, lives in CORUM
- Hasan TOKLU, lives in IZMIR
- Nasuf TOSUN, lives in MANISA
- Mehmet TUFAN, lives in ANTALYA
- Hasan Hüseyin TURAN, lives in KONYA
- Nihat TÜRKER, lives in ERZURUM
- Mehmet TÜRKMEN, lives in IZMIR
- Alaattin Bera TÜRKOĞLU, lives in ANKARA
- Münir TÜRKOĞLU, lives in TOKAT
- Abdurrahman TÜROĞLU, lives in CANKIRI
- İrfan UÇAR, lives in CANKIRI
- Salim UÇAR, lives in KONYA
- Ramazan Hakan ULAK, lives in MANISA
- Fariz ULUCAK, lives in SIVAS
- Ridvan ÜRETEN, lives in IZMIR
- Osman ÜRKMEZ, lives in IZMIR
- Nurettin ÜSTÜN, lives in TOKAT
- Yüksel YALÇIN, lives in KAYSERI
- Veyis YARAR, lives in TOKAT
- Fevzi YEŞİL, lives in ANTALYA
- Ali YILDIZ, lives in TOKAT
- Hilal YILDIZ, lives in SIVAS
- Tacettin YILDIZ, lives in KONYA
- Abdulkadir YILMAZ, lives in CORUM
- Adem YILMAZ, lives in CORUM
- Hasan YILMAZ, lives in KAYSERI
- Osman YURTSEVEN, lives in IZMIR
- Mehmet YÜZER, lives in KONYA
- Mehmet ZENGİN, lives in BALIKESIR
- Erkan ZEYLAN, lives in IZMIR