Last Updated on July 16, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 34262/09
Seyit Rüfai DENİZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 18 June 2009,
Having regard to the partial decision of 2 June 2015,
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, MrSeyitRüfai Deniz, is a Turkish national who was born in 1964 and lives in Ankara. He was represented before the Court by Mr M.N. Eldem, a lawyer practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. At the time of the events giving rise to the application, the applicant worked as a teacher at a state school in Ankara.
4. On 20 November 2008 a disciplinary investigation was started against the applicant following allegations that he did not have the book of guidelines for teachers to hand during a class inspection, that he did not prepare lesson plans and that he had addressed his hierarchical superior using the second‑person singular instead of the second-person plural, which is deemed more acceptable for the purposes of politeness in the Turkish language.
5. On 4 December 2008, the applicant was requested to submit his defence statements against those allegations. On 15 December 2008, the applicant submitted, inter alia, that he should not be held responsible for not having the book of guidelines for teachers since it had been the school administration’s responsibility to supply the teachers with the necessary materials and the administration had failed to do so. Concerning lesson plans, he stated that there had not been an obligation on his part to prepare them. He also submitted that he had not addressed the principal in the second person singular.
6. On 29 December 2008, the applicant received a disciplinary sanction in the form of a reprimand in respect of those allegations pursuant to section 125(B) of the Civil Servants Act.
7. On an unspecified date the applicant lodged an objection with the Directorate of the Ministry of Education, asking for the reprimand to be revoked. This was dismissed on 13 January 2009, in a decision which was not amenable to judicial review.
8. On 24 September 2014, at the applicant’s request, the reprimand was removed from the applicant’s service records pursuant to section 133 of the Civil Servants Act.
B. Relevant domestic law
9. A full description of the relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-16, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-19, 24 March 2015).
10. Section 125 of the Civil Servants Act catalogues certain acts and misconduct according to the disciplinary sanction to which they give rise. Accordingly, section 125(B) defines blameworthy behaviour in carrying out tasks or orders in an incomplete or late fashion, or not carrying out the necessary procedure or failing to maintain, properly use or care for official equipment as misconduct requiring a reprimand, whereas section 125(C) defines the same behaviour, when it is deliberate, as misconduct that requires the sanction of salary reduction. Section 125(B) defines being disrespectful to a superior while on duty as an act that requires a reprimand, whereas section 125(C) defines speaking disrespectfully to a superior as an act that requires the sanction of salary reduction. Likewise section 125(D) punishes any display of humiliating behaviour towards a superior with deferral of promotion to a higher rank for a minimum of one year and a maximum of three years. Furthermore, a civil servant will receive a heavier sanction if he repeats misconduct for which he has previously received a disciplinary sanction during the period for which the sanction remains on his service record. Finally, the list of acts and misconduct in section 125 is not exhaustive in so far as it is provided that acts comparable to those listed under this section will be punished with a disciplinary sanction appropriate to the gravity of the offence.
COMPLAINT
11. Relying on Article 6 § 1 of the Convention, the applicant alleged that his right of access to a court had been violated on account of the fact that he had had no means of challenging the disciplinary sanction he received before a judicial authority.
THE LAW
A. The Government’s objection
12. In their observations dated 17 March 2016, the Government argued that the applicant’s observations had not been submitted in one of the official languages of the Court as required by Rule 34 § 1 of the Rules of Court nor was there anything in the case file demonstrating that he had been granted leave to use the Turkish language in the proceedings before the Court.
13. The Court notes that in a letter dated 16 February 2016 the applicant was informed that the President of the Section had decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant him leave to use the Turkish language in the written proceedings before the Court. The Court further notes that it has already examined and dismissed similar objections by the respondent Government (see, for example, ŞakirKaçmaz v. Turkey, no. 8077/08, § 62, 10 November 2015). In the present case, the Court finds no reason to depart from that conclusion. The Government’s objection should therefore be rejected.
B. Right of access to court
14. In respect of his complaint regarding the alleged lack of access to a court, the applicant relied on Article 6 § 1 of the Convention which, in its relevant part, provides:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
1. Submissions of the parties
15. The applicant argued that he had suffered a significant disadvantage on account of the disciplinary sanction imposed on him, which had remained on his service records until 24 September 2014. In that connection he argued that the regulations in force at the relevant time concerning the appointment of administrators in educational institutions provided for an assessment scheme which deducted three points for each reprimand logged on a candidate’s service record.
16. The Government submitted that disciplinary sanctions in the form of a warning or a reprimand had no legal consequences for a civil servant’s salary, promotion, or other entitlements. Furthermore, they argued that in any event the sanction had been removed from the applicant’s civil service record.
17. The Government also argued that the regulations referred to by the applicant concerning promotion to an administrative position had been amended on 15 October 2008 with the effect that the number of points deducted for each reprimand on a candidate’s service record had been reduced from three to one and that in any event these regulations had been repealed on 13 August 2009. After this date, the appointment of candidates to administrative positions had become dependent on the successful completion of an exam. In that respect, they submitted that the applicant had taken an exam on 31 October 2009, but had failed it as a result of scoring only 43 points and not because of his service record. Furthermore, there had been no record of the applicant making a request to be appointed as an administrator in previous years. They argued that the reprimand in question could not therefore be considered as having resulted in the applicant not being promoted to an administrator post or in a determination of his civil rights or obligations.
2. The Court’s assessment
18. The Court notes at the outset that the present case concerns disciplinary proceedings against the applicant, who was a civil servant at the time of the events.
19. The Court has consistently held that disciplinary proceedings involving the right to continue to exercise a profession entail disputes (“contestations” in the French text) over civil rights within the meaning of Article 6 § 1 of the Convention (see, inter alia, Biagoli v. San Marino (dec.), no. 64735/14, 13 September 2016 with further references).
20. In this context it should also be noted that the applicability of Article 6 § 1 of the Convention to disciplinary proceedings is not only determined by the sanctions which are actually imposed by the disciplinary bodies. What is important in this assessment is the sanctions which an individual risked incurring in the disciplinary proceedings in question (see A. v. Finland (dec.), no. 44998/98, 8 January 2004).
21. In the present case, the disciplinary authorities gave the applicant a reprimand, which is a written warning cautioning a civil servant that his or her alleged misconduct has been found to be blameworthy. As one of the second lightest disciplinary sanctions in the Turkish administrative context with respect to civil servants, a reprimand does not have any implications as regards the right to remain in the civil service. Neither does it have any financial consequences for the civil servant. The fact that negative points are incurred for each reprimand in the civil servant’s service record is not in itself enough to render Article 6 § 1 of the Convention applicable. However, the Court notes that once the proceedings were started, there was always the possibility that the applicant could have been given a heavier disciplinary sanction, including ‒however unlikely ‒ dismissal from the civil service. In other words, what was theoretically at stake when the disciplinary investigation was launched against the applicant was the applicant’s right to remain in his post (compare Di Giovanniv. Italy, no. 51160/06, § 36, 9 July 2013).
22. The Court notes that, at the material time of the dispute, it was clear that the domestic law made a distinction on the basis of the actual outcome of the proceedings, sanctions in the form of a warning or reprimand not being amenable to judicial review, whereas the other sanctions could be challenged before the administrative courts. Accordingly, if the actual outcome of the disciplinary proceedings was one of the more serious disciplinary sanctions which have a direct bearing on a civil servant’s entitlement to salary, promotion or termination of his employment, an appeal to a court of law offering the full guarantees of Article 6 § 1 of the Convention was available. Given the fact that the disciplinary proceedings in the applicant’s case only resulted in a reprimand and did not otherwise determine the applicant’s civil rights or obligations in concretoand there was thus no denial of access of a court to have a determination of his civil rights or obligations, the Court takes the view that the complaint concerns issues of a purely disciplinary nature and raises no issues under Article 6 § 1 of the Convention (see, mutatis mutandis, A., cited above and contrast Di Giovanni, cited above, §§ 32-38). The Court further notes that had the proceedings affected the applicant’s civil rights and obligations, he would have had access to judicial review. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 21 June 2018.
Stanley Naismith Robert Spano
Registrar President
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