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The European Court of Human Rights (ECtHR) has declared the application of judge Kadriye Çakar dismissed by a decree under Turkey's State of Emergency inadmissible for non-exhaustion of domestic remedies.
The Court pointed out that a new remedy was available to Çatal, provided for in Legislative Decree no. 6851 , enabling her to challenge her dismissal before the Supreme Administrative Court. The Supreme Administrative Court's decision could then, where applicable, be challenged before the Constitutional Court (individual application).
Reason for inadmissibility: State of Emergency Commission Established by decree doesn't operate
Çatal in her application to ECtHR had submitted that "she did not have an effective remedy enabling her to appeal against the measure dismissing her from office because no appeal lay against measures taken by legislative decree during a state of emergency" and added that "two members of the Constitutional Court and judge rapporteurs working in that court had been arrested and placed in pre-trial detention".
As regards an application to the administrative courts, Çatal referred to the judgment of the Supreme Administrative Court of 4 November 2016 in which it had declined jurisdiction to examine the merits of an application for judicial review brought by a judge who had been dismissed by a decision of the Supreme Council of Judges taken pursuant to Legislative Decree no. 667.
The court ruled with regard to the effectiveness of the application to the administrative courts, after the present application had been lodged Legislative Decree no. 685 had designated the Supreme Administrative Court as a court of first instance for the purpose of examining the merits of appeals against measures taken pursuant to Article 3 of Legislative Decree no. 667.
However the Legislative Decree No. 685 to which the ECtHR refers in its decision also provides that a State of Emergency Commission be established in order to examine applications made with regards to measures taken in the State of Emergency.
The commission however has not begun operating nor announced when it would start processing applications.
Altıparmak: The purpose is to earn time
Ankara University Faculty of Political Science Human Rights Center lecturer Assoc. Prof. Dr. Kerem Altıparmak in an article he wrote for bianet has said with regards to the State of Emergency Commission:
" [...] The State of Emergency Commission is far from meeting the standards set by the Venice Commission and the case law of the ECtHR. It is obvious that the only purpose of the regulation is to earn some time and to prolong the path to the Strasbourg". (AS/DG)
