Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23143/93

by Yüksel Zengin

against Turkey

The European Commission of Human Rights sitting in private on

8 September 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, 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 7 December 1993

by Yüksel Zengin against Turkey and registered on 21 December 1993

under file No. 23143/93;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

29 July 1995 and the observations in reply submitted by the

applicant on 20 September 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national of Kurdish origin born in

Maden in 1966. She is a teacher and lives in Dyiarbakir. She

represented before the Commission by Professor Kevin Boyle, Ms.

Françoise Hampson and Ms. Sheldon Leader, all university teachers at

the University of Essex.

The facts of the present case as submitted by the parties may be

summarised as follows:

The applicant is a member of the Diyarbakir Branch of the

Education and Science Workers Union (Egit-Sen). The Union was founded

on 13 November 1990, but has never been granted formal legal status.

The Diyarbakir Branch was declared illegal by the Office of the Chief

of Police and the Mayor of Diyarbakir.

On 17 April 1993 Egit-Sen held a press conference at the issue

of which the applicant gave a written statement in her capacity of

secretary of the union.

On 2 July 1993 the Diyarbakir Province National Education

Disciplinary Committee examined a proposal to impose a disciplinary

sanction on the applicant. It was stated in the proposal that the

applicant had signed a statement relating to a press conference as the

Secretary to Egit-Sen, a trade union whose authorities and

responsibilities were not known, i.e. its activities in Diyarbakir

Province were unauthorised and therefore illegal. The proposal was

brought in accordance with Article 125 D(g) of Law No. 657, which

prohibits State officials from "giving information and statements to

the press, news agencies, radio or television institutions when not

authorised to do so". The proposed sanction was to suspend the

applicant's promotion for a period of one year. The Committee,

considering that the applicant had a good record and that her defence

was partly satisfactory, rejected the proposal and sent the file to the

Governor's Office.

On 8 July 1993 the Governor of Diyarbakir Province imposed on the

applicant a disciplinary sanction of reduction of 1/30 of her salary

in accordance with Article 125 C of Law No. 657.

The applicant filed an appeal, arguing that the Egit-Sen union

was not illegal and that at any rate her statement to the press did non

concern her activity as a teacher.

On 12 May 1994 the Dyiarbakir Administrative Court rejected her

appeal on the ground that the applicant's public statement without

authorisation was contrary to Law no. 657.

The applicant did not lodge an appeal to the Council of State.

COMPLAINTS

1. The applicant complains that the penalty which was imposed upon

her on 8 July 1993 constituted an unjustified interference with her

freedom of expression guaranteed by Article 10 of the Convention.

As regards exhaustion of domestic remedies for the purposes of

Article 26 of the Convention, the applicant submits that it was highly

unlikely that she would have succeeded in having her conviction

overturned on an appeal to the Council of State.

2. The applicant complains under Article 11 of the Convention that

the disciplinary penalty imposed on her on 8 July 1993 for signing a

press statement in her capacity as a trade union official constituted

and unjustified interference with her freedom of association guaranteed

by Article 11 of the Convention. She also complains that the trade

union Egit-Sen is illegal and has been refused recognition from the

authorities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 December 1993 and registered

on 21 December 1993.

On 3 April 1995 the Commission decided to communicate the

applicant's complaints concerning her disciplinary sanctions to the

respondent Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on 29 July

1995. The applicant replied on 20 September 1995.

THE LAW

1. The applicant complains that the penalty which was imposed upon

her on 8 July 1993 constituted an unjustified interference with her

freedom of expression guaranteed by Article 10 (Art. 10) of the

Convention.

As regards exhaustion of domestic remedies

The Government submit that the applicant has not exhausted

domestic remedies, as she did not appeal to the Council of State. They

point out that both Article 125 of the Turkish Constitution and Article

135/2 of Law 657 provide for a judiciary remedy against administrative

decisions. The Government submits in this respect jurisprudence of the

Council of State where a disciplinary sanction of dismissal of a civil

servant for having made a political statement had been cancelled, the

Council of State considering that the State must recognise the rights

and freedoms ensuing from Conventions accepted.

The applicant considers that it was highly unlikely that she

would have succeeded in having her conviction overturned on an appeal

to the Council of State, as the limitations on the freedom of

expression imposed by Law No. 657 are so broadly drawn that they are

in violation of the Convention.

Article 10 (Art. 10) of the Convention provides, insofar as

relevant :

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers [...]

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Commission recalls, however, that under the terms of Article

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

all domestic remedies have exhausted, according to the generally

recognised rules of international law. This condition is not met by the

mere fact that an applicant has submitted his case to the various

competent courts. It is also necessary for the complaint brought

before the Commission to have been raised, at least in substance,

during the proceedings in question. On this point the Commission

refers to its constant case-law (cf., for example, Nos. 5573/72 and

5670/72, Dec. 16.7.76, D.R 7., p. 8).

The Commission also recalls that the Court emphasised that the

application of the rule of exhaustion of domestic remedies must make

due allowance for the fact that it is being applied in the context of

machinery for the protection of human rights that the Contracting

Parties have agreed to set up. Accordingly, it recognised that Article

26 (Art. 26) must be applied with some degree of flexibility and

without excessive formalism and that it does not require merely that

applications should be made to the appropriate domestic courts and that

use should be made of remedies designed to challenge decisions already

given. Article 26 (Art. 26) of the Convention normally requires also

that the complaints intended to be made subsequently before the

Commission should have been made to those same courts, at least in

substance and in compliance with the formal requirements and time-

limits laid down in domestic law (see the Cardot v. France judgment of

19 March 1991, Series A no. 200, p. 18, para. 34; Eur. Court H.R.,

Sadik v. Greece judgment of 15 November 1996, to be published).

In the present case, at no time, however, did the applicant rely

on Article 10 (Art. 10) of the Convention, or on arguments to the same

or like effect based on domestic law, in the courts dealing with her

case.

Even assuming that the applicant's arguments before the domestic

courts where such that she could be considered as having raised in

substance her complaint under Article 10 (Art. 10), the Commission

notes that the she did not appeal against the judgement of Dyiarbakir

Administrative Court.

In that respect the applicant claims that this would have been

an ineffective remedy as constant case-law of the Council of State

shows that such complaints are rejected. However, the applicant did not

submit any case-law supporting her allegations.

On the other hand, the Commission notes that, according to the

case-law submitted by the respondent Government, the Council of State

has already reversed disciplinary sanctions taken against civil

servants for unauthorised public statements, on the ground that such

sanctions were contrary to the rights and freedoms guaranteed by

accepted Conventions.

Moreover, the Commission also recalls that it has constantly held

that the mere existence of doubts as to the prospects of success does

not absolve an applicant from exhausting a given remedy (cf. Nos. 5577-

5583, Dec. 15.12.75, D.R. 4, pp. 4-72 with further references).

The Commission accordingly finds that the applicant cannot be

considered to have exhausted the effective remedies available under

Turkish law.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant complains under Article 11 (Art. 11) of the

Convention that the disciplinary penalty imposed on her on 8 July 1993

for signing a press statement in her capacity as a trade union official

constituted and unjustified interference with her freedom of

association guaranteed by Article 11 (Art. 11) of the Convention. She

also complains that the trade union Egit-Sen is illegal and has been

refused recognition from the authorities.

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

"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."

According to the Government, the applicant was sanctioned not

because of her union activities, but for having made statements without

authorisation. As to the applicant's freedom of association, the

Government point out that the union of civil servants has been

recognised by the National Assembly and that a future law will govern

this right. On the other hand, Egit-Sen has never been recognised and

is therefore illegal.

The applicant states that there is an administrative practice

preventing teachers and other civil servants to form and join trade

unions and that the existence of this administrative practice renders

an appeal to the Council of State ineffective.

However, the Commission notes that this complaint concerns the

disciplinary sanction imposed on the applicant on 8 July 1993. The

Commission therefore refers to its findings above concerning the

exhaustion of domestic remedies.

Accordingly, the Commission notes that the applicant has neither

raised the present complaint before the national courts, nor has she

appealed the Dyiarbakir Administrative Court's judgment of 12 May 1994.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies. This part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

The applicant also complains in the name of the union Egit-Sen

that the latter is illegal and has been refused recognition from the

authorities. However, the Commission notes that the applicant has not

submitted a power enabling her to represent Egit-Sen before the

Commission.

Insofar as this part of the complaint concerns the rights of the

union Egit-Sen, the Commission considers that the applicant cannot be

considered as a 'victim' within the meaning of Article 25 par. 1

(Art. 25-1) of the Convention.

This part of the application must, therefore, be rejected as

incompatible ratione personae with the provisions of the Convention

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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ZENGIN v. TURKEY

ZENGIN v. TURKEY

LEXI