Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29282/95

by Vahit ÖZSOY

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 May 1995 by

Vahit Özsoy against Turkey and registered on 16 November 1995 under

file No. 29282/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1943, resides in

Ankara.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In December 1973, the applicant was posted to Artvin as a judge.

In November 1976 the Judge Inspectors Committee requested the

applicant's suspension for breach of impartiality as a judge.

In January 1977 the Supreme Judges Committee dismissed the

request, and concluded that there were no grounds for imposing a

disciplinary penalty on the applicant. However, the committee gave him

a formal warning which stated that the criticised behaviour by a judge

could lead to a misunderstanding.

On later occasions he was subject to various warnings after he

had made statements to the public in which he had allegedly used

indecent and reproachful language against the Ministry of Justice.

On 12 August 1981 the Supreme Judges Committee took into

consideration the applicant's criticised behaviour, and the previous

warnings with which he had failed to comply and accordingly decided to

impose a disciplinary penalty on him by which he was moved to a court

in another city.

The applicant requested a re-examination, but on 26 April 1982,

the third Section of the Supreme Judges Committee rejected his request.

On 6 July 1983 the applicant resigned voluntarily from his post.

On 25 September 1992 the applicant applied to the Ministry of

Justice to be reinstated as a judge according to Law No. 3817 of 7 July

1992 which provided for a "partial pardon" for civil servants. The

pardon stipulated, inter alia, that disciplinary penalties imposed upon

all civil servants up to 7 July 1992, shall be revoked. The sole

exception applied to those civil servants who had been subject to

disciplinary penalties which entailed their removal from one place to

another or dismissal from their posts.

On 12 October 1992 the Supreme Judges and Prosecutors Committee

rejected the applicant's request for reinstatement. The committee

concluded that the pardon was not applicable to the applicant's case

as he had previously been removed from one court to another and this

kind of penalty was expressly excluded in the pardon.

The applicant requested a re-examination of his case several

times, but the committee rejected his requests. It concluded that the

reinstatement request had been rejected according to Law No. 3817 of

7 July 1992. Therefore, it was lawful and there were no grounds to

change or re-examine the first decision. The final decision was taken

on 7 November 1994.

COMPLAINTS

1. The applicant first complains that with regard to the Supreme

Judges and Prosecutors Committee's decision which is binding, he did

not benefit from the guarantees of a judicial procedure in conformity

with Article 6 para. 1 of the Convention.

2. He also complains under Article 10 of the Convention that the

disciplinary penalty imposed on him for having expressed his opinions

on many occasions, infringed his right to freedom of expression.

3. He further complains under Article 10 of the Convention that his

request to be reinstated as a judge was rejected merely on account of

his political opinions.

4. On the basis of the same facts, the applicant invokes Articles 1,

9, 14, 17, 25 and 60 of the Convention.

THE LAW

1. The applicant complains that, with regard to the Supreme Judges

and Prosecutors Committee's decision, which is binding, he did not

benefit from the guarantees of a judicial procedure in conformity with

Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission recalls that in the case of Neigel v. France (Eur.

Court HR, judgment of 17 March 1997, Reports 1997-II, no. 32,

paras. 43 and 44), the Court noted that the law of many member States

of the Council of Europe makes a basic distinction between civil

servants and employees governed by private law, which has led it to

hold that "disputes relating to the recruitment, careers and

termination of service of civil servants are as a general rule outside

the scope of Article 6 para. 1 (Art. 6-1)" (para. 43). In that case,

the Court found that the applicant's request for reinstatement to the

permanent post of shorthand typist which she had previously held

related to her "'recruitment', her 'career' and the 'termination of

[her] service'. It did not therefore concern a 'civil' right within the

meaning of Article 6 para. 1 (Art. 6-1)."

The Commission too, has held that the dismissal of a high ranking

soldier was a matter where the State acted in the field of public law

such that no "civil rights" were at issue (see, for example, E.S. v.

Germany, No. 23576/94, Dec. 29.11.95, D.R. 84, p. 58). This was also

the case in Balfour v. the United Kingdom (No. 30976/96, Dec. 2.7.97,

unpublished), where the Commission held that no "civil rights" were

involved due to the public nature of his former employment. Further the

Commission considers that in the light of the Court's judgment in the

Neigel case, the manner in which domestic law treats employees of the

State cannot be the prime consideration in determining whether a

dispute over a right is "civil": the question is one for the Convention

organs to determine.

Accordingly, the Commission finds that the dispute between the

applicant, a civil servant, and his employer, the State, did not

determine his "civil" rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1) therefore

does not apply in the present case.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant also complains under Article 10 (Art. 10) of the

Convention that the disciplinary penalty imposed on him for having

expressed his opinions on many occasions, infringed his right to

freedom of expression.

However, the Commission recalls that the declaration made on

28 January 1987, pursuant to Article 25 (Art. 25) of the Convention,

by which Turkey recognised the Commission's competence to examine

individual petitions, extends only to facts and judgments based on

events occurring after that date.

The Commission notes in the present case that the complaint under

Article 10 (Art. 10) of the Convention concerns the imposition of the

disciplinary penalty on the applicant on 12 August 1981. The Commission

therefore observes that the facts alleged relate to a period prior to

28 January 1987.

The Commission also notes that the applicant was not dismissed

from his post but that he resigned voluntarily on 6 July 1983. This

date also relates to a period prior to 28 January 1987.

It follows that the applicant's complaint falls outside the

competence ratione temporis of the Commission and therefore must be

rejected as incompatible with the provisions of the Convention within

the meaning of Article 27 para. 2 (Art. 27-2).

3. He further complains under Article 10 (Art. 10) of the Convention

that his request to be reinstated as a judge was rejected merely on

account of his political opinions.

The Commission observes that, in the present case, the applicant

was prohibited, on the basis of a Turkish legislative provision, from

being reinstated in judicial service since he had been subject to

disciplinary penalty such as removal from one court. The Supreme Judges

and Prosecutors Committee did not, in refusing to reinstate the

applicant, take account of his personal opinions and attitudes, but

merely applied the national law as to disciplinary measures.

Therefore, the Commission considers that there has been no

interference with the exercise of the applicant's rights protected by

Article 10 (Art. 10) of the Convention and that this complaint must be

rejected as being manifestly ill-founded pursuant to Article 27

(Art. 27) of the Convention.

4. On the basis of the same facts, the applicant also complains of

a violation of the Articles 1, 9, 14, 17, 25 and 60

(Art. 1, 9, 14, 17, 25, 60) of the Convention.

An examination by the Commission of these complaints as they have

been submitted does not disclose any appearance of a violation of the

rights and freedoms set out in the Convention and in particular in

these Articles.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ÖZSOY v. TURKEY

ÖZSOY v. TURKEY

LEXI