Last Updated on December 15, 2020 by LawEuro
Information Note on the Court’s case-law 246
December 2020
Pişkin v. Turkey – 33399/18
Judgment 15.12.2020 [Section II]
Article 8
Article 8-1
Respect for private life
Inadequate judicial review of the dismissal of an employee of a public institute, under an emergency legislative decree, on account of his alleged links with a terrorist organisation: violation
Article 6
Civil proceedings
Article 6-1
Fair hearing
Inadequate judicial review of the dismissal of an employee of a public institute, under an emergency legislative decree, on account of his alleged links with a terrorist organisation: violation
Facts – The applicant was dismissed from his post as an expert at a Development Agency (hereafter “the agency”) on the basis of presumed links with a terrorist organisation which the national authorities considered as having instigated the military coup of 15 July 2016, pursuant to Emergency Legislative Decree No. 667 (hereafter “the Legislative Decree”).
The applicant complained about his dismissal and the subsequent judicial review.
Law –
Article 6 § 1: the civil, and not the criminal, limb of this provision was applicable in the present case.
(a) Procedure relating to the termination of the employment contract:
The applicant’s employment contract was terminated by decision of his employer, who referred to the Emergency Legislative Decree rather than to the provisions of the Labour Code governing termination with a valid reason, whereby certain procedural requirements were not complied with in the instant case. The Legislative Decree authorised the dismissal of civil servants and civil service employees under a simplified procedure which did not necessitate any kind of adversarial proceedings, and which did not provide for any specific procedural safeguard. It was sufficient for the employer to consider the employee as belonging, affiliated or linked to one of the illegal structures defined in the Legislative Decree, with no need even for summary personalised reasoning.
(b) Judicial review:
(i) Scope of the case:
The applicant’s only recourse was to ask the national courts to provide him with the facts or other evidence capable of justifying his employer’s assessment, so that he could contest the likelihood, veracity and reliability of that evidence. That being the case, it was incumbent on the courts to consider all the factual and legal questions relevant to the case before it in order to provide the applicant with effective judicial review of the employer’s decision.
(ii) Characteristics of the judicial proceedings:
There was nothing in the case file to demonstrate that the decision-making process in the domestic courts had failed to comply with the requirements of adversarial proceedings and equality of arms.
(iii) Reasoning of the judicial decisions:
The national courts dismissed the applicant’s appeal on the grounds that the termination of his contract was to be considered as a valid termination based on the Legislative Decree, without considering “termination with a just reason” within the meaning of the Labour Code.
Furthermore, the domestic courts had exclusively assessed whether the dismissal had been decided by the competent authority and whether the impugned decision had had been based on law. The court had at no stage considered whether the termination of the applicant’s employment contract on grounds of his presumed links with an illegal structure had been justified by his behaviour or other relevant evidence or information. Moreover, the applicant’s grounds of appeal had not been duly examined by the courts in question. The fact that the Constitutional Court had adopted a summary decision of inadmissibility showed that it had failed to analyse the legal and factual issues.
The domestic courts’ findings failed to demonstrate that they had conducted any in-depth, thorough examination of the applicant’s pleas, had based their reasoning on the evidence which he had presented, or had provided valid reasons for dismissing his arguments. The shortcomings noted had placed the applicant at a clear disadvantage vis-à-vis his opponent.
(c) Conclusion:
Despite the fact that, theoretically, the national courts had had full jurisdiction to adjudicate the dispute between the applicant and the authorities, they had declined jurisdiction to consider all the factual and legal issues relevant to the case before them. Accordingly, the applicant had not been properly heard by the domestic courts, which had failed to ensure his right to a fair trial.
As regards Article 15 of the Convention, even though procedures such as those which had been implemented under the Legislative Decree could have been accepted as being justified in the light of the very specific circumstances of the state of emergency, that Legislative Decree had placed no restrictions on the judicial review to be conducted by the courts following the termination of persons’ employment contracts. In view of the importance of the issue at stake for the Convention rights of litigants, where an emergency legislative decree lacked any clear and explicit provision ruling out any possibility of judicial review of measures adopted for its execution, it should always be interpreted as authorising the respondent State’s courts to conduct a mode of review sufficient to avoid arbitrariness. In the circumstances of the present case, the failure to comply with the requirements of fair proceedings could not have been justified by the Turkish derogation.
Conclusion: violation (unanimous).
Article 8:
(a) Applicability:
There was absolutely no evidence to suggest that the termination of the employment contract in question had been the foreseeable result of the applicant’s own actions. The latter had lost his job, that is to say his means of subsistence. The Court had a duty to lay particular emphasis on the applicant’s argument to the effect that he had been branded a “terrorist” by society, and had thus been stigmatised: no employers dared offer him employment because the termination of his contract had been based on the Legislative Decree. Consequently, there had been real repercussions on his possibilities for forging and maintaining relationships, including professional ones, as well as grave consequences for his professional and social reputation. Article 8 was therefore applicable to the case.
(b) Merits:
The termination of the applicant’s employment contract had been decided not by a State authority but by a local development agency. Despite its status as a public-law entity, that agency had not exercised governmental powers. Furthermore, the applicant’s employment contract had been governed by the Labour Code. Nonetheless, the dismissal had been based on section 4 (1) (g) of the Legislative Decree, which required employers to terminate the employment contracts of employees whom he considered to have links with an illegal structure. Consequently, the dismissal might be seen as an obligation under the said Legislative Decree far exceeding the legal framework governing the employment contract in question. Moreover, the authorities’ responsibility would have been engaged if the impugned facts had been the result of a failure on their part to guarantee the applicant’s enjoyment of a right enshrined in Article 8 of the Convention. In those conditions, the applicant’s dismissal on the grounds of his presumed links with an illegal structure may be considered as an interference in his right to respect for his private life. The interference had been provided for by law and pursued several legitimate aims, that is to say the protection of national security and the prevention of disorder and crime.
As regards whether the decision-making process leading up to the applicant’s dismissal had been accompanied by guarantees against arbitrariness, that process had been cursory. The only reasoning provided for the decision had been a bare reference to the terms of Article 4 (1) (g) of the Legislative Decree, providing for the dismissal of employees considered as belonging, affiliated or linked to an illegal structure. That reference was vague and uncertain in nature. The applicant’s employer had not specified the nature of the applicant’s activities used as evidence of his links with an illegal structure. Nor had any actual charges ever been explicitly put forward during the domestic proceedings.
The considerations concerning the civil servants’ duty of loyalty were applicable mutatis mutandis in the instant case, having regard to the development agencies’ mission. The Court could, following the example of its above findings under Article 6 of the Convention, agree that the simplified procedure introduced under the Legislative Decree enabling civil servants and other civil service employees to be dismissed might be considered as justified in the light of the highly specific circumstances of the situation following the failed military coup on 15 July 2016, having regard to the fact that the measures adopted during the state of emergency had been subject to judicial review.
As regards the thoroughness of the judicial review of the impugned measure, the Court was prepared to accept that membership of structures organised along military lines or establishing rigid and irreducible bonds of solidarity among their members, or else following an ideology contrary to the rules of democracy, which is a basic component of “European public order”, might have raised a problem in terms of national security and the prevention of disorder where the members of such bodies were called upon to discharge public duties.
Consequently, it had naturally been important for the public authorities or other bodies operating in the civil service field to highlight potential threats to national security. The national courts should, however, have been in a position to penalise cases in which the reliance on that concept had no reasonable basis in fact or pointed to an arbitrary interpretation.
In the present case, the Court was in no real position to adjudicate on the assessment of the national authorities on which the applicant’s dismissal had been based. Indeed, even though the dismissal had been based on the applicant’s alleged links with an illegal structure, the domestic judicial decisions had shed no light on the criteria which had been used to justify the applicant’s employer’s assessment and to determine the exact nature of the charges against the applicant. The domestic courts had accepted, without conducting any in-depth examination of the impugned measure, which had nonetheless had major consequences for the applicant’s right to respect for his private life, that the said assessment had amounted to a valid reason for deciding to terminate his employment contract. The courts had thus failed to determine the real reasons for the termination of the applicant’s contract. Consequently, the judicial review of the implementation of the impugned measure had been inadequate in the present case.
The arguments put forward by the Government were relevant, but insufficient to demonstrate that the interference complained of had been “necessary in a democratic society”. In particular, the applicant had not benefited from the requisite minimum level of protection against arbitrariness.
Conclusion: violation (unanimous).
Article 41: EUR 4,000 in respect of non-pecuniary damage; no award in respect of pecuniary damage.
(See also Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Note d’information 96; Fazliyski v. Bulgaria, 40908/05, 16 April 2013, Note d’information 162; Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 5809/08, 21 June 2016, Note d’information 197; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Note d’information 221)
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