Last Updated on May 8, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Urat v. Turkey – 53561/09 and 13952/11
Judgment 27.11.2018 [Section II]
Article 6
Article 6-2
Presumption of innocence
Language used by administrative courts when upholding teachers’ dismissals following discontinued criminal proceedings: violation, no violation
Facts – The applicants, two brothers, were arrested on suspicion of membership of the illegal organisation, Hizbullah. The criminal proceedings against them were discontinued following the expiry of the five-year prosecution period. Following disciplinary proceedings, the applicants were dismissed from their jobs as primary school teachers. Their dismissals were subsequently upheld by the administrative courts.
Law – Article 6 § 2
(a) Applicability – There were two aspects to the protection afforded by the presumption of innocence: a procedural aspect relating to the conduct of the criminal trial, and a second aspect, which aimed at ensuring respect for a finding of innocence in the context of subsequent proceedings. There was no single approach to ascertaining the circumstances in which the second aspect of Article 6 § 2 would be violated. Much would depend on the nature and context of the proceedings in which the impugned decision had been adopted. However, in all cases, the language used by a decision maker would be of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 § 2.
The disciplinary and criminal proceedings had been initiated simultaneously against the applicants and the disciplinary decisions to dismiss them had been taken while the criminal proceedings had still been pending. While both aspects of Article 6 § 2 remained relevant for the time period in which the disciplinary and criminal proceedings had been conducted in parallel, having regard to the fact that the administrative court judgments post-dated the decisions in the criminal proceedings against the applicants, the features of the second aspect were predominant in their cases.
The overlap in time between the proceedings did not lead to an automatic application of Article 6 § 2 to the subsequent proceedings; there had also to be a link between two such sets of proceedings to justify extending the principle of the presumption of innocence to subsequent proceedings. The parties had not disputed the fact that the dismissal of the applicants from the civil service had been directly related to the events leading to the criminal proceedings. The fact that the disciplinary authorities and administrative courts had examined the criminal file and based their reasoning to a great extent on its contents was sufficient to enable the Court to conclude that a strong link existed between the criminal and disciplinary proceedings.
Conclusion: Article 6 § 2 applicable.
(b) Merits – In cases concerning disciplinary proceedings, there was no automatic infringement of Article 6 § 2 where an applicant had been found guilty of a disciplinary offence arising out of the same facts as a previous criminal charge which had not resulted in a conviction. Disciplinary bodies were empowered to, and capable of, establishing independently the facts of the cases before them and that the constitutive elements of criminal and disciplinary offences were not identical. In that connection it was 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 had been charged in criminal proceedings where such misconduct had been duly established. The Convention did not preclude that an act might give rise to both criminal and disciplinary proceedings, or that two sets of proceedings might be pursued in parallel. Even exoneration from criminal responsibility did 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. However, in the absence of a final criminal conviction, if the disciplinary decision were to contain a statement imputing criminal liability to the applicant for the misconduct alleged against him in the disciplinary proceedings, it would raise an issue under Article 6 § 2.
(i) As regards the first applicant – In its impugned judgment the administrative court had started out by summarising the factual and legal background giving rise to the first applicant’s dismissal. It had then noted that his dismissal from the civil service had been recommended because he had been considered to be a member of the Hizbullah terrorist organisation. In its reasoning, the administrative court had considered that the first applicant had committed a disciplinary offence by giving his profile to Hizbullah and by attending its lessons and meetings, indicating therefore that those findings fell within the scope of “disrupting the peace, tranquillity and working order of the institution for ideological and political purposes”.
The first part of the administrative court’s judgment contained only a recapitulation of the factual and legal background of the case and did not reflect an opinion or contain a statement to the effect that the first applicant was guilty of a criminal offence, namely membership of an illegal organisation. The second part of the judgment, which reiterated the principle that exoneration from criminal liability did not preclude the finding of a disciplinary offence, was likewise not problematic from the angle of Article 6 § 2. It remained for the Court to determine whether the last sentence where the administrative court had found the first applicant’s disciplinary liability to be established on the basis of the alleged facts, namely that the first applicant had given the organisation his profile and that he had attended its lessons and meetings, could be said to impute criminal guilt to the first applicant. The Court considered that the language used in the statement could not be equated to a finding of criminal liability for the offences with which the first applicant had been charged in the criminal proceedings. The meaning that flowed from the impugned statement was not that the first applicant had been a member of the terrorist organisation – which had been the charge in the criminal proceedings – but merely that he had handed his CV to the organisation and attended its lessons and meetings, which had been found sufficient by the administrative court to entail his disciplinary liability. For that reason, the language used by the administrative court in finding against the first applicant in the disciplinary proceedings at issue had not offended the presumption of innocence.
Conclusion: no violation in respect of the first applicant (unanimously).
(ii) As regards the second applicant – In its reasoning, the domestic court had stated that certain elements in the criminal case file had demonstrated that the second applicant had been a member of the Hizbullah terrorist organisation. In the Court’s view, that statement alone amounted to an unequivocal declaration of the second applicant’s criminal liability and ran counter to his right not to have his innocence called into question with respect to criminal proceedings which had been discontinued.
Conclusion: violation in respect of the second applicant (unanimously).
The Court further held, by six votes to one, that there had been no violation of Article 6 § 1 as the domestic court’s reasoning in the first applicant’s case had not reached the threshold of arbitrariness or manifest unreasonableness, or amounted to a denial of justice.
Art. 41: EUR 6,000 to the second applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Allen v. the United Kingdom [GC], 25424/09, 12 July 2013, Information Note 165)
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