Last Updated on April 30, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 48997/09
Sezai ORAK
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 January 2020 as a Committee composed of:
Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 28 July 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr SezaiOrak, is a Turkish national, who was born in 1975 and is currently serving a prison sentence in Diyarbakır. He was represented before the Court by Mr H. Taş and Mr V. Taş, lawyers practising in Elazığ.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicant
4. On 8 February 2000, the applicant, a high school teacher in Mardin, was arrested and taken into police custody on suspicion of being a member of Hizbullah, a proscribed organisation in Turkey.
5. On 8 March 2000 criminal proceedings against him were started before the Diyarbakır State Security Court. The applicant was remanded in custody during the entire course of the criminal proceedings.
6. On 23 March 2004 the Diyarbakır State Security Court delivered its judgment in the case and convicted the applicant of attempting to undermine the constitutional order by force and sentenced him to life imprisonment and banned him from public service for life.
7. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Diyarbakır Assize Court.
8. On 19 October 2007 the Diyarbakır Assize Court delivered its judgment and convicted the applicant of membership of Hizbullah, and for his involvement in taking part in the murders of two persons and injuring two others as well as for his involvement in activities attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code, and sentenced him to life imprisonment. It acquitted the applicant of injuring two persons and the murder of one individual for lack of proof. This judgment became final on appeal on 16 May 2008.
2. Disciplinary proceedings against the applicant
9. On 10 January 2001, while the criminal proceedings against the applicant were still pending, the Supreme Disciplinary Board of the Ministry of Education dismissed the applicant from public service pursuant to section 125 § E (a) of the Public Service Act (Law no. 657).
10. On an unspecified date in 2001 the applicant challenged his dismissal by bringing a case against the Ministry of Education and requested the stay of execution of his dismissal on account of the fact that the criminal proceedings against him were still pending before the criminal courts.
11. On 14 September 2001 the Diyarbakır Administrative Court rejected the request for the stay of execution on the grounds that it did not meet the requirements provided for by law.
12. Relying on the fact that the criminal proceedings concerning the same accusations were still pending against him, the applicant challenged the decision of 14 September 2001 before the Regional Administrative Court.
13. On 26 October 2001, having regard to the fact that the applicant was dismissed on account of his alleged membership of a terrorist organisation, the Regional Administrative Court granted the applicant’s request for stay of the dismissal decision and concluded that only the competent criminal court could establish his criminal responsibility. In that respect, it held that the applicant was charged with a criminal – and not a disciplinary – offence, the determination of which could only be made by a competent criminal court. It therefore held that the applicant could not be dismissed from public service on account of membership of a terrorist organisation in the absence of a final conviction. However, having regard to the fact that he was remanded in custody, the court noted in passing that he could be suspended from public service pending the final judgment in the criminal proceedings. It therefore held that the applicable measure in the applicant’s case would be that in Section 141 of the Public Service Act.
14. Pursuant to the Regional Administrative Court’s decision of 26 October 2001, the applicant’s dismissal was stayed and his employment with the Ministry of Education was suspended. During this time the applicant continued to receive the two-thirds of his salary.
15. On 21 September 2004, having regard to the fact that the State Security Court had delivered its judgment against the applicant on 23 March 2004 and convicted him on account of membership of Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force, the Diyarbakır Administrative Court unanimously rejected the applicant’s request for the decision dismissing him from his post to be quashed. The relevant parts of the judgment read:
“While the applicant was working as a teacher, he was charged with membership of a terrorist organisation … [he] was arrested and remanded … Based on identical charges, a disciplinary investigation was started against the applicant. The disciplinary investigation had regard to the applicant’s testimony at the police station and at the public prosecutor’s office as well as to the fact that the applicant had given his résumé to the organisation. It concluded that the applicant had committed the acts attributed to him in that the applicant took part in the military wing of the organisation where he recruited new members, acted as a messenger and taught its ideologies. Based on the findings of that report, the applicant’s defence was requested, however it was not found convincing. For this reason the Supreme Disciplinary Board recommended the applicant’s dismissal from public service on the basis of its consideration that the applicant’s acts corresponded to the disciplinary offence of ‘disrupting the work discipline and harmony’ within the meaning of Section 125 § E (a) of the Public Service Act.
Having regard to the investigation and case-file before it, the court concludes that the applicant disrupted the work discipline and harmony for ideological purposes. Bearing in mind the importance of the post of teaching [the court deems that] it would prejudice the public interest to keep the applicant employed in the civil service.
During the course of examination of the present case, the court has also requested the judgment of the Diyarbakır State Security Court. The court notes that the applicant was convicted of attempting to undermine the constitutional order by force and was sentenced to imprisonment and to a permanent prohibition on taking up employment in the public service.
That being said, it is an established principle of case law that exoneration from criminal liability does not preclude the finding of a disciplinary offence. It follows that the veracity of the [allegations concerning] applicant’s acts punishable by a disciplinary sentence needs to be ascertained.
The court finds that the decision to dismiss the applicant based on Section 125 § E (a) of the Public Service Act was in accordance with law in so far as the veracity of the acts attributed to the applicant were clearly established and that the applicant disrupted the work harmony and discipline for ideological purposes.”
16. The applicant’s appeal and rectification request were dismissed by the Supreme Administrative Court on 11 June 2007 and 14 April 2009 respectively.
B. Relevant domestic law
17. Section 125 § E of the Public Service Act (Law no. 657 of 14 July 1965), in so far as relevant, provides as follows:
“E. … The following acts and conduct entail dismissal from the public service:
(a) Disrupting the work discipline and harmony for ideological and political purposes; participating, provoking, encouraging or otherwise aiding and abetting acts including boycotts, occupations, obstructions, slowdowns and strikes or being collectively absent from work.”
COMPLAINT
18. The applicant complained under Article 6 § 2 of the Convention that his dismissal from public service while the criminal proceedings against him were pending violated his right to the presumption of innocence.
THE LAW
19. The applicant complained about a breach of the presumption of innocence as guaranteed by Article 6 § 2 of the Convention, which reads:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. The parties’ submissions
20. The applicant maintained his arguments.
21. The Government submitted that there was no obligation under the Convention for the authorities to refrain from taking disciplinary action against a civil servant for acts with which he or she has been charged in criminal proceedings. In their view, in so far as the applicant’s complaint concerned his dismissal from work before his criminal conviction became final, no issue arose under the Convention. As far as the language used by the administrative court in their decision to uphold the applicant’s dismissal from civil service, the Government submitted that the domestic court had not used any specific language that offended the presumption of innocence.
B. The Court’s assessment
22. The Court notes that Article 6 § 2 applies to persons “charged with a criminal offence and safeguards the right to be “presumed innocent until proved guilty according to law”. The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law (see, inter alia, Allenet de Ribemont v. France, no. 15175/89, § 35, Series A no. 308; Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000‑X; A.L. v. Germany, no. 72758/01, § 31, 28 April 2005; and Caraian v. Romania, no. 34456/07, § 74, 23 June 2015). Viewed as a procedural guarantee in the context of a criminal trial itself, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof, legal presumptions of fact and law, the privilege against self‑incrimination, pre-trial publicity and premature expressions, by the trial court or by other public officials, of a defendant’s guilt (see Allen v. the United Kingdom [GC], no. 25424/09, § 93, ECHR 2013, with references). In that respect the presumption of innocence may be infringed not only in the context of the criminal proceedings, but also in separate civil, disciplinary or other proceedings that are conducted simultaneously with the criminal proceedings (see Kemal Coşkun v. Turkey, no. 45028/07, § 41, 28 March 2017).
23. In previous cases similar to the present one, the Court has held that it is neither the purpose nor the effect of the provisions of Article 6 § 2 to prevent the authorities vested with disciplinary power from imposing sanctions on a civil servant for acts with which he has been charged in criminal proceedings, where such misconduct has been duly established (see Allen, cited above, § 124 and the cases cited therein). The Court reiterates that the Convention does not preclude that an act may give rise to both criminal and disciplinary proceedings, or that two sets of proceedings may be pursued in parallel. The Court reiterates that even exoneration from criminal responsibility does not, as such, preclude the establishment of civil or other forms of liability arising out of the same facts on the basis of a less strict burden of proof (see,Urat v. Turkey, nos. 53561/09 and 13952/11, § 53, 27 November 2018, with further references). However, there would be an issue under Article 6 § 2 if, in the absence of a final criminal conviction, there was a statement imputing criminal liability to an applicant for the misconduct alleged against him in disciplinary proceedings (see Kemal Coşkun, cited above, § 53 and the cases cited therein).
24. In determining the compliance with the principle of the presumption of innocence in cases where there is a link between the dismissal and criminal proceedings, the Court does not concern itself with the question whether the outcome of the dismissal proceedings is as such compatible with the guarantees enshrined in Article 6 § 2 of the Convention. Its examination is confined solely to the grounds relied on by domestic authorities and the language they used in justifying the dismissal (ibid., § 56).
25. In the case at hand, the Court must therefore determine, in the light of the above principles, whether the reasoning of the Diyarbakır Administrative Court in upholding the applicant’s dismissal from his teaching post reflected an opinion that the applicant was guilty of membership of terrorist organisation before the final decision in the criminal proceedings.
26. In that respect, the Court notes that the first paragraph of the Diyarbakır Administrative Court’s judgment contains only a recapitulation of the factual and legal background of the case and does not reflect an opinion or contain a statement to the effect that the applicant was guilty of a criminal offence, namely membership of an illegal organisation. The second paragraph which contains the court’s actual reasoning for upholding the applicant’s dismissal refers to the applicant’s conduct as the disruption of work discipline for ideological purposes and the undesirability of keeping him at the teaching post. While the Court considers that the adequacy of the reasoning furnished by the Diyarbakır Administrative Court leaves much to be desired, having regard to the absence of any criminal characterisation of the applicant’s conduct by that court itself, this shortcoming alone does not infringe the applicant’s right to presumption of innocence (compare with the situation of two applicants in Urat, cited above, §§ 56-59).
27. Finally, the part of that judgment which makes a mere reference to the applicant’s conviction at first-instance by the Diyarbakir State Security Court equally does not offend the presumption of innocence since the administrative court did not endorse the findings of the criminal court or drew inappropriate conclusions from this fact (see, mutatis mutandis,Güç v. Turkey, no. 15374/11, § 42, 23 January 2018).
28. The Court, therefore, cannot find that the reasoning of the Diyarbakır Administrative Court offended the presumption of innocence guaranteed to the applicant under Article 6 § 2 of the Convention.
29. It follows that the application must be rejected as inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 February 2020.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
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