Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31117/96

by Mehmet AGKO

against Greece

The European Commission of Human Rights sitting in private on

20 October 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 April 1996 by

Mehmet AGKO against Greece and registered on 23 April 1996 under file

No. 31117/96;

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 is a Greek citizen, born in 1949. He resides in

Xanthi, Greece. In the proceedings before the Commission he is

represented by Mr. O. Haciibram, a lawyer practising in Xanthi.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

The applicant, who considers himself a member of the Turkish

Muslim minority of Thrace, is a graduate of the Special Academy for

Teachers (Idiki Pedagoyiki Akadimia) of Thessaloniki. He used to work

as a teacher in one of the minority schools in the Prefecture of

Xanthi. His conditions of employment were not different from those of

other civil servants.

On 6 March 1994 the Union of Turkish Teachers of Western Thrace

issued a statement to express its disagreement with ministerial

decision No. Z2/219/24-5-1993 concerning the procedure for the hiring

of Muslim teachers on a temporary basis with private-law contracts. On

21 March 1994 the Executive Committee of the Union called on the

teachers and pupils of the minority schools not to attend school

between 28 March 1994 and 2 April 1994. The Committee claimed that it

had the support of a number of Turkish minority organisations.

On 28 March 1994 the applicant made a declaration to the Minority

Schools Office of the Prefecture of Xanthi to the effect that he would

not perform his duties between 28 March 1994 and 2 April 1994.

On 7 June 1994 disciplinary proceedings were instituted against

him. On 20 December 1994 the Regional Disciplinary Board of Xanthi

decided that the applicant should be dismissed on the ground that he

lacked faith in and dedication to his country (Article 206 para. 1

subpara. 1 of the Civil Servant's Code), had refused to discharge his

duties (Article 206 para. 1 subpara. 19 of the Code), had intentionally

engaged in an act or omission which could damage or endanger the

interests of the State (Article 206 para. 1 subpara. 27 of the Code)

and had acted illegally in the discharge of his duties (Article 206

para. 1 subpara. 28 of the Code).

On 21 February 1995 the applicant appealed to the Council of

State (Simvulio Epikratias). He submitted that he did not lack faith

in and dedication to his country, that he had not acted against social

order, that he had the right to engage in objective and reasonable

criticism of the actions of his superiors or the Government, that he

had not refused to discharge his duties but had instead participated

in a lawful strike, that he had not engaged in any acts which could

have caused damage to the State or in any criminal offences, that he

had been forced not to perform his duties because his life had been

threatened by other Muslims, that the Board had attributed wrong

motives to his actions which were not anti-Greek and that his

punishment aimed at his destruction. He further claimed that the

hearing before the Disciplinary Board had not been preceded by a proper

inquiry, that the decision instituting proceedings against him was

vague and that he had been punished for offences which were not

mentioned therein. Finally, he argued that the decision of the Board

was not duly reasoned in that it failed to specify how his actions

amounted to the particular disciplinary offences which must have been

punished with the particular penalty.

In a decision delivered on 30 October 1995 the Council of State

considered that the inquiry ordered in the applicant's case satisfied

the requirements of the law. It also found that the decision

instituting proceedings against him was not vague since it mentioned

that the applicant had to be disciplined for having failed to perform

his duties between 28 March 1994 and 2 April 1994; as for the rest, the

Disciplinary Board and the Council of State remained free to examine

the facts for which disciplinary proceedings had been instituted

against the applicant under different legal provisions from those

mentioned in the decisions instituting such proceedings. The Council

of State considered that the applicant had no reason not to perform his

duties between 28 March 1994 and 2 April 1994 and had, moreover,

associated this abstention with statements of organisations which

proclaimed themselves to represent the "Turkish" teachers of Western

Thrace. As a result, he had committed the disciplinary offence of

particularly inappropriate behaviour in the exercise of his duties.

Moreover, the Council found that the applicant had abstained from his

duties following the calls for action of the so-called "Turkish"

teachers' organisations. As a result, the penalty of dismissal was

appropriate, because his actions had had as a result the disruption of

the functioning of the minority schools in Western Thrace in which the

State was particularly interested. They had also resulted in social

unrest among the Muslim minority of this sensitive region. This in turn

could have resulted in dangerous albeit unwarranted disruption of the

friendly relations between Greece and neighbouring countries and in the

disruption of the harmonious coexistence between the Greek citizens,

Muslim and Christian, who lived in Western Thrace. Finally, the Council

considered that the decision of the Board was duly reasoned. For these

reasons, the Council of State decided to reject the applicant's appeal.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about

the unfairness of the decisions ordering and upholding his dismissal.

He stresses that it was obvious that the Disciplinary Board and the

Council of State took into consideration the statements of the various

organs of the minority when deciding to impose such a harsh penalty.

He submits that this was illegal.

2. He also complains under Article 11 of the Convention that he was

punished with dismissal for having participated in a peaceful

collective mobilisation intended to express his discontent with "the

chronic problems of the minority education system".

3. Finally, he complains of a violation of Article 9 of the

Convention and Article 2 of Protocol No. 1, because the aim of his

protest, for which he was punished, was to safeguard the right of

minority parents to educate their children in conformity with their own

religious and philosophical convictions.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention about the unfairness of the decisions ordering and upholding

his dismissal from the civil service.

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

relevant, provides as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

... hearing ... by (a) ... tribunal ..."

The Commission recalls that, according to the case-law of the

Court, 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) of the Convention because they do not

involve a determination of civil rights and obligations (Eur. Court HR,

Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32,

paras. 43 and 44). The applicant was a civil servant. It follows that

the proceedings in question did not involve a determination of the

applicant's civil rights and obligations within the meaning of

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

The Commission, moreover, considers that the proceedings were

exclusively disciplinary in character and led to no deprivation of

liberty. It follows that they did not involve the determination of a

criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention (No. 15965/90, Dec. 15.1.93, D.R. 74, p. 76).

The Commission, therefore, finds that Article 6 para. 1

(Art. 6-1) did not apply to the proceedings in question. As a result,

this part of the application is incompatible ratione materiae with the

provisions of the Convention and must be rejected in accordance with

its Article 27 para. 2 (Art. 27-2).

2. The applicant complains under Articles 9 and 11 (Art. 9, 11) of

the Convention that he was punished with dismissal for having

participated in a peaceful collective mobilisation intended to express

his discontent with "the chronic problems of the minority education

system" and to safeguard the right of minority parents to educate their

children in conformity with their own religious and philosophical

convictions.

Article 9 (Art. 9) of the Convention provides as follows:

"1. Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his religion

or belief and freedom, either alone or in community with others

and in public or in private, to manifest his religion or belief,

in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

safety, for the protection of public order, health or morals, or

for the protection of the rights and freedoms of others."

Article 11 (Art. 11) of the Convention provides as follows:

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and to join trade unions for the protection of his

interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society in the interests of national security or

public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the

rights and freedoms of others. This Article shall not prevent the

imposition of lawful restrictions on the exercise of these rights

by members of the armed forces, of the police or of the

administration of the State."

The Commission notes that the Council of State found the

applicant responsible for particularly inappropriate behaviour in the

exercise of his duties, a disciplinary offence, in that he had failed

to perform his duties between 28 March 1994 and 2 April 1994 and had

associated this behaviour with statements of organisations which

proclaimed themselves to represent the "Turkish" teachers of Western

Thrace. Moreover, the Commission notes that the statements of these

organisations called for collective action by the pupils and teachers

to protest against a ministerial decision concerning the functioning

of the minority schools. Finally, according to the Council of State,

dismissal was the appropriate penalty in the particular circumstances

of the case because the statements with which the applicant had

associated the failure to perform his duties affirmed the "Turkish"

identity of the minority of Western Thrace. The Council of State

considered that, by doing so, the applicant had, inter alia, disrupted

the harmonious coexistence between the Greek citizens, Muslim and

Christian, who lived in Western Thrace. The Commission, therefore,

considers that the applicant was punished both for having participated

in a strike and for certain views which he was deemed to have expressed

by doing so.

According to the case-law of the Commission, complaints

concerning the right to strike fall to be examined under Article 11

(Art. 11) of the Convention, which is the lex specialis in relation to

Articles 9 and 10 (Art. 9, 10) (Young, James and Webster v. the United

Kingdom, Comm. Report 14.12.79, para. 172, Eur. Court HR, Series B no.

39, p. 48). However, the Commission does not exclude that a separate

issue could arise under Article 10 (Art. 10) of the Convention, since

the Council of State clearly indicated that dismissal would not have

been the appropriate penalty for a few days' absence form work, if the

applicant had not, by his actions, sought to express the idea that a

"Turkish" minority existed in Thrace.

Insofar as Article 11 (Art. 11) of the Convention is concerned,

the Commission does not consider it necessary to examine whether the

applicant has exhausted domestic remedies. According to the case-law

of the Commission, Article 11 (Art. 11) of the Convention does not

guarantee the right of civil servants to strike (No. 10365/83, Dec.

5.7.84, D.R. 39 p. 237). It follows that no appearance of a violation

of this provision arises in this connection.

The Commission, therefore, considers that the part of the

application which concerns the applicant's punishment for his

participation in a strike is manifestly ill-founded and must be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Insofar as Article 10 (Art. 10) of the Convention is concerned,

the Commission recalls that the applicant received a harsher penalty

because, by participating in the strike, he was deemed to have

expressed the view that the minority in Western Thrace had a "Turkish"

identity and this had, inter alia, disrupted the harmonious coexistence

between the Greek citizens, Muslim and Christian, who lived in the

area. Moreover, in another case the Commission considered that it

constituted an impermissible limitation of the right of freedom of

expression to find somebody guilty of "sowing discord" among the

citizens on the ground that he had used the term "Turkish" to refer to

the Muslim minority of Western Thrace in the context of an electoral

campaign (Ahmet Sadik v. Greece, Comm. Report 4.4.95, paras. 53-54,

Eur. Court H.R. Reports 1996).

However, the Commission also recalls that under Article 26

(Art. 26) of the Convention it may only deal with a matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law. Moreover, according to the case-

law of the Commission and the Court, the fact that a domestic court of

appeal is competent to examine proprio motu grounds amounting to a

violation of the Convention does not absolve the applicant from the

obligation of raising the complaint before the court himself (No.

11244/84, Dec. 2.3.87, D.R. 55, p. 98; Eur. Court HR, Ahmet Sadik v.

Greece judgment of 15 November 1996, Reports 1996-V, No. 20, para. 33).

In the circumstances of the case, the applicant has not in any

manner affirmed before the Council of State his right to express the

view that the minority to which he belongs has a "Turkish" identity.

It follows that the applicant has failed to exhaust domestic remedies

in accordance with Article 26 (Art. 26) of the Convention in this

connection.

The Commission, therefore, considers that the part of the

application which concerns the applicant's harsher punishment for the

views he was deemed to have expressed by participating in the strike

must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of

the Convention.

4. The applicant complains of a violation of Article 2 of Protocol

No. 1 (P1-2), because the aim of his protest, for which he was

punished, was to safeguard the right of minority parents to educate

their children in conformity with their own religious and philosophical

convictions.

The Commission considers that the applicant, who is a teacher,

cannot claim to be a victim of a violation of this provision, which

guarantees rights for pupils and their parents. It follows that no

appearance of a violation of Article 2 of Protocol No. 1 (P1-2) arises.

This part of the application is, therefore, manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M. de Salvia S. TRECHSEL

Secretary President

to the Commission of the Commission

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AGKO v. GREECE

AGKO v. GREECE

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