Last Updated on July 3, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 20556/10
Tefik YEŞİLOVA
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon FridrikKjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, MrTefikYeşilova, is a Turkish national, who was born in 1965. He passed away on 20 June 2015. In a letter dated 10 July 2015 his heirs – his wife, MeralYeşilova, his sons, Emre and Onur Yeşilova‑expressed their wish to continue the application in his stead.
2. The applicant and subsequently his heirs were represented before the Court by Mr D. Karaca, a lawyer practising in Ankara.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.
4. At the material time of the events, the applicant worked as a technician in the military and was employed by the Ministry of Defence. On 23 August 2007 he was sent to a location to repair a tape recording device. The following day, he prepared a technical report indicating that the reparations had been carried out.
5. On an unspecified date, during a search carried out in a certain Ş.A.’s apartment, in connection with a criminal investigation, twenty‑five “CYLON” type batteries were discovered. On 29November 2007, the batteries were identified as belonging to the inventory of the military base where the applicant worked. In order to find out how those batteries had ended up in Ş.A.’s apartment, a military criminal investigation was carried out. In connection with this investigation, the applicant gave a statement to the military prosecutor on the suspicion of embezzlement. Accordingly, he submitted that he had taken out the batteries in question for the repair duty he had been sent on 23 August 2007. He added that he had been instructed by his supervisor to bring a couple of extra batteries. It was on the basis of this understanding that he had taken the batteries in question but had forgotten it at the apartment of his girlfriend when he was getting ready for his trip. He also told the prosecutor that subsequently he had broken up with his girlfriend and the batteries were left in her apartment and he had forgotten to collect them. He submitted that Ş.A. and his former girlfriend became involved in a relationship and that the latter had moved with him in the Ş.A.’s apartment where the batteries were discovered.
6. On 9 September 2008, the military public prosecutor gave a decision not to prosecute the applicant on the ground that the constituent elements of the offence of embezzlement had not been made out. In the decision it was indicated that the applicant’s supervisor had confirmed the applicant’s statement concerning the instructions to bring extra batteries. Furthermore, an expert had determined that the batteries in question did not have any economic value as the effective use date had already expired on the date they were taken out by the applicant. The public prosecutor however noted that the applicant had not followed the correct procedure in taking out the batteries and in any event had failed to return them to the unit, facts which could engage his liability under abuse of office, an offence under section 257 § 2 of the Criminal Code. However, having regard to the fact that the batteries had been in any event defunct and that the public’s interests were not harmed by the applicant’s conduct, and the fact that he had not gained an undue advantage by his conduct, he determined that the constituent elements of abuse of office had also been not made out in his case.
7. Meanwhile on 5 December 2007, that is before the decision not to prosecute the applicant on embezzlement charges, the applicant was dismissed from his post on the ground that he had engaged in conduct that breached the trust of his employer pursuant to Article 25 § 2 (e) of the Labour Code.
8. On 3 March 2008, the applicant brought proceedings before the Ankara Labour Court, and requested his reinstatement by challenging the grounds for his dismissal. He submitted, inter alia, that the batteries in question did not have an economic value and that in any event he had not acted in bad faith in taking them out.
9. On 18 September 2008, the labour court dismissed the applicant’s case, the relevant parts of the decision read:
“…
[The applicant] took the batteries in question to his house without permission.
[The applicant]’s workplace is a military workplace. It follows that the required procedure for taking out items that belong to the military must be observed. [The applicant] has not followed this procedure. Having particular regard to the nature of the workplace, the procedure for taking out inventory, regardless of whether the items in questions are defunct or categorised as waste, should be followed. [The applicant] has breached his employer’s trust and acted contrary to the rules of honesty. It follows that the dismissal is justified.”
10. On 23 September 2008, the applicant appealed against the decision of the labour court before the Court of Cassation. He submitted that by failing to adjourn the proceedings before it pending the criminal military investigation, the labour court had made an incomplete examination of his case. He further submitted that shortly after the labour court delivered its decision, the public prosecutor had decided not to prosecute him. In the light of the facts as established by the criminal prosecutor in his decision not to prosecute, the applicant requested the Court of Cassation to overturn the decision of the labour court.
11. On 28 September 2009, the Court of Cassation upheld the decision of the labour court, holding that the latter had been in accordance with law and procedure.
B. Relevant domestic law
12. Article 25 § 2 (e) of the Labour Code (law no.4857) provides:
“Under the following circumstances, the employer may denounce labour contracts of both indefinite and definite durations, before the end of their duration or the term of notice:
…
II. Conduct against ethical principles, good faith and the like.
…
e) if the employee commits a dishonest or disloyal act such as breach of trust, theft or disclosure of trade secrets,
…”
13. Section of the Labour Courts Act (Law no. 5521), as in force at the material time, provided as follows:
“…
A regional assize court or the Court of Cassation shall render a final decision on the appeal within two months.”
COMPLAINTS
14. The applicant complained under Article 6 § 2 of the Convention about an infringement of his right to presumption of innocence in the context of the proceedings before the Ankara Labour Court. Relying on Article 6 § 3 (d) of the Convention, he further complained about the fairness of those proceedings, notably of his alleged inability to summon his witness. Finally, he complained about the length of labour proceedings before the Court of Cassation. The provisions of Article 6 of the Convention invoked by the applicant read, insofar as relevant:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
…
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
…”
THE LAW
A. Complaint concerning a breach of the principle of the presumption of innocence
15. The applicant submitted that in upholding his dismissal without awaiting the outcome of the criminal investigation with respect to the events that led to his dismissal, the Ankara Labour Court had disregarded his right to the presumption of innocence laid down in Article 6 § 2 of the Convention.
16. 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).
17. As to the period of time during which the presumption of innocence applies, the Court recalls that Article 6 § 2 applies to everyone “charged with a criminal offence”. The Court reiterates that according to its case-law, the concept of a “charge” is autonomous, it has to be understood within the meaning of the Convention and not solely within the meaning in domestic law. It may thus be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51 and O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 35, ECHR 2007). This may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle v. Germany, cited above, § 73 with further references). Nevertheless, whereas the primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, the guarantees of Article 6 are applicable from the moment that a “criminal charge” exists within the meaning of this Court’s case-law and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them (see mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 253, 13 September 2016, with further references).
18. The Court notes that in the instant case the applicant has never been arrested, no bill of indictment has been issued with respect to the criminal offence he was suspected of, nor has a trial been opened. Therefore it is open to doubt whether the guarantees of Article 6 § 2 applied during period in which a preliminary investigation was carried out against the applicant in a way that would require public officials or judicial authorities from making premature statements about his guilt in the dismissal proceedings (compare Mikolajová v. Slovakia, no. 4479/03, §§ 42-43, 18 January 2011, and Mulosmani v. Albania, no. 29864/03, §§ 139-140, 8 October 2013). However, the Court does not consider it necessary to determine this issue because, even assuming that Article 6 § 2 were to be applicable, the reasoning and the language employed in the Ankara Labour Court’s decision, did not amount to a finding of guilt or even to a suggestion of guilt on the applicant’s part. In that respect, the Court notes that in upholding the applicant’s dismissal, the labour court noted that his dismissal had been justified on account of his failure to follow the correct procedure with respect to taking out the military’s inventory. The domestic court made no reference to the offences of embezzlement or abuse of office that the applicant was initially suspected of, nor did it comment on the criminal investigation itself. It follows that this complaint is manifestly ill‑founded within the meaning of Article 35 § 3(a) of the Convention and must therefore be rejected in accordance with Article 35 § 4 of the Convention.
B. Complaint concerning the fairness of the proceedings
19. The applicant complained that the proceedings in the Ankara Labour Court had been unfair. On that account, he submitted under Article 6 § 3 (d) of the Convention that the labour court refused to hear his witness, namely his supervisor who had instructed him in the first place to take out the batteries in question.
20. The Court reiterates that Article 6 § 3 of the Convention only applies to criminal proceedings (see, for instance, Koni v. Cyprus, no. 66048/09, § 29, 27 October 2015). It therefore has no application to the present case. Instead, the applicant’s complaint as to the fairness of the labour proceedings falls to be examined under the general right to fair trial as provided for by Article 6 § 1 (see ibid., with references to DomboBeheer B.V. v. the Netherlands, 27 October 1993, §§ 30–35, Series A no. 274).
21. In that respect, the Court reiterates that, as a general rule, the assessment of the facts and the taking of evidence and its evaluation is a matter which necessarily comes within the appreciation of the national courts and cannot be reviewed by the Court unless there is an indication that the judges have drawn grossly unfair or arbitrary conclusions from the facts before them (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999–I, Herbst v. Germany, no. 20027/02, § 83, 11 January 2007; and, mutatis mutandis, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004). Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many others, Streletz, Kessler and Krenz v. Germany [GC], no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II). While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], cited above, § 28). In principle, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, as a recent example, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, ECHR 2017 (extracts)).
22. Furthermore, Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of that Article, including the principle of equality of arms (see Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002; Khrabrova v. Russia, no. 18498/04, § 38, 2 October 2012; and,Gillissen v. the Netherlands, no. 39966/09, § 50, 15 March 2016).
23. In the circumstances of the present case, the Court notes that the applicant wanted to call his supervisor as a witness, who had instructed him to take the batteries in question at the material time. According to the applicant, his testimony would have been relevant in the determination of the dispute by the labour court. The Court however notes that the dispute in the applicant’s case hinged on not whether the applicant had received instructions from his supervisor or whether those instructions had been correct. Rather, the question before the labour court was whether the applicant’s failure in following the correct procedure for taking out the batteries amounted to a breach of trust that would have justified his dismissal. On that account, the labour court considered that the fact of the applicant taking the items to his former residence and forgetting to collect them later – facts which were not disputed by the parties – sufficient to reach a decision on whether his conduct had breached the trust of his employer. For this reason, it cannot be considered that the labour court’s refusal to hear the applicant’s witness amounted to a disproportionate restriction on his ability to present arguments in support of his case in the proceedings.
This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaint concerning the length of proceedings
24. The applicant complained that the duration of one-year in the appeal proceedings before the Court of Cassation had been excessive and contravened the mandatory provision of section 8 of Law no. 5521 which required, at the material time, appeal proceedings to be completed within two months.
25. The Court notes that it has already examined and dismissed similar complaints in previous cases against Turkey concerning the length of labour proceedings (see Çalık v. Turkey (dec.), no. 3675/07, 31 August 2010; Dildirim v. Turkey (dec.), no. 42927/10 and 14 other applications, §§ 43‑45, 12 March 2013; Yiğit v. Turkey (dec.), no. 24032/09 and 21 other applications, §§ 43-45, 16 December 2014; and Akça v. Turkey (dec.), no. 17997/10, 22 November 2016). It observes that the proceedings in the present application lasted for nineteen months with an examination at two levels of jurisdiction. In that connection, the Court recalls that a delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000–VIII). The Court therefore considers that the length of proceedings lasting one year before the Court of Cassation in view of the overall duration of the proceedings do not exceed the reasonable time requirement guaranteed under Article 6 § 1 of the Convention, and that the domestic courts do not appear to have failed to act with the required diligence when determining the applicant’s claims.
It follows that this part of the application must be declared inadmissible as 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 12 July 2018.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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