SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38406/97 by Mehmet Emin ALBAYRAK against Turkey

The European Court of Human Rights (Second Section) , sitting on 16 November 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr R. Türmen ,

Mrs V. Strážnická , Mr P. Lorenzen , Mr A.B. Baka , Mr A. Kovler , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 September 1997 and registered on 3 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is a Turkish national of Kurdish origin, born in 1967 and currently residing in Giresun , Turkey.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant

At the material time the applicant was a judge in Tufanbeyli . On 14 August 1995 the General Command of the Gendarmerie submitted a formal complaint to the Justice Inspection Office at the Ministry of Justice with regard to the applicant’s behaviour. A Justice Inspector ( adalet müfettişi ) initiated a disciplinary investigation.

On 1 March 1996 the Justice Inspection Office notified the applicant in writing that a disciplinary investigation had been carried out under Article 82 of Law No. 2802 into a number of acts which he had allegedly committed and which were considered incompatible with his status as a judge. The letter indicated that “evidence has been obtained” in this regard. However, there was no mention in the letter of either the content or the source of the evidence. The letter did however set out the charges against the applicant and the applicant was requested to submit his defence to the charges in writing.

The charges, five in all, included the accusation that the applicant had undermined the honour and dignity of the judiciary as well as respect for the applicant’s own position as a judge (the first charge). According to the Justice Inspection Office, it had been reported that the applicant had introduced himself at various private social events as being “of Kurdish origin” and had generally behaved in a manner which displayed his sympathy for the PKK. It was further alleged that he had talked to Kurdish speaking citizens in Kurdish in order to gain their sympathy. He was also accused of regularly reading Özgür Ülke , a pro-Kurdish daily which was “a legal publication of the PKK” until it was subsequently banned. Finally, he was accused of regularly watching at his home via a satellite antenna MedTV , an allegedly PKK-controlled television channel.

The other four charges related inter alia to reported incidents of his quarrelsome behaviour with regard to his colleagues and to his failure to respect the dress code of the profession.

The applicant denied the facts alleged against him, maintaining that they were wrong, inaccurate, incomplete or had been misinterpreted. He presumed that the evidence against him in the file mainly consisted of statements given by his colleagues and other civil servants. He noted that in the past he had made formal complaints against the local public prosecutor, Hasan Altun , and the elected mayor ( belediye başkanı ), Huseyin Kece , who became hostile towards him as a result. He contended that the local public prosecutor, as a result of certain personal and professional disagreements which he had with him, spread false accusations against him and convinced other local state officials to make further such accusations. Before the Court the applicant stated that he had reported the public prosecutor to the Ministry of Justice on the ground the public prosecutor intentionally and regularly sent the case files on Huseyin Kece and his relatives to another court although his court had jurisdiction. He added that some of his personal views expressed in good faith in casual social gatherings were also possibly being used as evidence against him. He stated that he believed in all the fundamental principles of the Turkish Republic and served the Turkish State faithfully. He regarded the allegation that he sympathised with “the organisation”, i.e. the PKK, as an insult, noting that he had always condemned terrorist acts.

The applicant admitted having said during a visit to a military command that all Turkish citizens of Kurdish origin should not be suspected of being potential terrorists, noting that he too was of Kurdish origin. He further admitted having criticised in private conversations certain acts of the state authorities. In his opinion, the authorities sometimes failed to make any distinction between the innocent population of Kurdish origin and the PKK, with the result that innocent citizens were insulted and unlawfully discriminated against.

The applicant admitted reading the “ Özgür Gündem ” newspaper which in his opinion reported, although in a biased manner, the events in south-east Turkey. He argued that the incidents reported in that region were a problem which the country was facing and he, like everyone else, had a right to be informed about them. He noted that he also read various other legal publications for the same purpose. Moreover, he argued that the fact that he read certain legal but biased publications did not confirm his approval of the views expressed therein. As to the allegation that he regularly watched MedTV at home, the applicant explained that he had never been able to watch the channel on account of technical difficulties with the reception. He stated that only a family friend had access to his home and that no one else could possibly know which television channels he watched at home. He argued that his acts including reading the “ Özgür Gündem ” newspaper and attempting to watch “ MedTV ” were not unlawful. The applicant requested the Justice Inspection Office to discontinue the investigation since all the allegations were unsubstantiated.

On 27 March 1996 the Justice Inspector drafted a report on the accusations made against the applicant. The report was submitted to the Justice Inspection Office at the Ministry of Justice. On 26 April 1996 the Minister of Justice approved the transfer of the file to the Supreme Council of Judges and Public Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu ; “the Supremce Council”) with a view to the consideration of possible disciplinary measures under Article 87 of Law No. 2802. The file transferred included the five initial charges drafted in almost identical language.

The Supreme Council assessed the evidence in the file as well as the written defence previously submitted by the applicant. In its majority decision of 11 July 1996, the Supreme Council found that the evidence in the file was sufficient to conclude that the applicant was guilty of all five charges. The contents and the sources of the evidence in the file which were relied on were not restated in the decision.

With regard to the first charge, the Supreme Council concluded that the applicant should be transferred to another jurisdiction ( yerdeğiştirme cezası ). The applicant received a reprimand ( kınama cezası ) in respect of the other charges.

The applicant requested the Supreme Council to rectify its decision. On 14 November 1996 the Supreme Council unanimously rejected the request, finding that its decision was correct (“ yerinde ”). On 17 April 1997 the Board for Examination of Objections of the Supreme Council ( İtirazaı İnceleme Kurulu ) rejected the applicant’s objection, finding that the decision of 11 July 1996 was correct.

On 2 August 1997 the Supreme Council re-assessed the applicant’s case and found that, under Article 30 § 4 of the Law No. 2802, he could not be promoted for two years as a result of the fact that he had been transferred to another jurisdiction for disciplinary reasons.

The applicant was subsequently appointed to the Giresun area where he presently serves as a judge. His request of 9 January 1998 to be appointed to a region carrying a higher rank was rejected by the Supreme Council on 12 February 1998.

The Government

The Government point out that the applicant, although a representative of the judiciary, engaged in pro-PKK propaganda at meetings he attended. An investigation was conducted by the Justice Inspection Office of the Ministry of Justice. According to the Government, statements were taken from the County Governor, public prosecutors as well as from the applicant and his fellow judges. The investigation revealed that the applicant watched Med Tv and placed his television set on his balcony to allow his neighbours to watch the channel. During his visits to the scenes of crimes which had been committed the applicant tried to communicate with Kurdish speaking persons there and gain their sympathy for the PKK cause. An official appointed to lead the investigation of the Justice Inspection Office concluded that the applicant through his behaviour sympathised with the PKK and claimed that Kurdish was his native tongue. The witness, Huseyin Kece , testified that the applicant had told him that he would join the PKK and go to Germany if he were to be dismissed. Furthermore, the applicant had difficulties with his colleagues and on one occasion threatened a provincial public prosecutor that “he would bring all his tribe to the spot” if another judge persisted in signing particular documents. The applicant also accused the same public prosecutor of removing files from his jurisdiction. In addition, the applicant behaved aggressively towards his colleagues, did not pay sufficient attention to his appearance and was habitually late for work.

The Inspector’s report was sent to the General Directorate of Punishment of the Ministry of Foreign affairs with the permission of the Ministry of Justice and then transferred to the Supreme Council in line with Article 87 of Law no. 2802. The applicant submitted written observations to the Supreme Council. The Supreme Council concluded that the accusation that the applicant had undermined the honour and dignity of the judiciary had been proved and that he should in consequence be transferred to a lesser jurisdiction in accordance with Article 68 of Law no. 2802. The applicant’s objections to the decision taken were rejected on 14 November 1996 and on 17 April 1997, on the latter occasion by the Supreme Council’s Board of Examination of Objections.

COMPLAINTS

1. The applicant complains that the authorities violated his right to respect for his private life and his home by investigating the television channels he watched at home. He contends that unknown authorities unlawfully conducted this investigation and that the Supreme Council unlawfully referred to their findings as evidence in support of the first charge recorded against him in the decision of 11 July 1996. He invokes Article 8 of the Convention.

2. The applicant also complains that he was punished for reading a daily newspaper which was a legal publication at the material time and for watching a television channel which broadcasts from abroad in his mother language, Kurdish. He contends that the punishment was a violation of his right to freedom of expression and invokes Article 10 of the Convention in this connection.

3. The applicant further complains that, under Article 159 of the Turkish Constitution, there is no appeal against disciplinary punishments handed down by the Supreme Council of Judges and Public Prosecutors. He invokes Article 13 of the Convention.

4. Finally the applicant complains that the decision of the Supreme Council discriminated against him on the basis of his ethnic origin. He alleges that the publications and broadcasts in question are popular with the population and as such tolerated by the authorities. He contends that if the acts with which he was charged were committed by a judge of Turkish origin, that judge would not de facto be faced with a disciplinary investigation and a disciplinary punishment. The applicant invokes Article 14 of the Convention.

THE LAW

1. The applicant states that the authorities violated his right to respect for his private life and his home by investigating the television channels he watched in his own home. He invokes Article 8 of the Convention, which provides as relevant:

“1. Everyone has the right to respect for his private ... life, his home (...).

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”

The Government point out that the applicant declared in his testimony of 8 March 1996 that he watched Med Tv . Furthermore, there was evidence that the applicant allowed his neighbours to view the channel from his balcony.

The applicant contends that he never watched television on his balcony and that this would have been physically impossible given the design of his and his neighbours’ appartments . The applicant further notes that the authorities have never reported the name of the neighbour who made this allegation about him and that it was never put to him during the Inspector’s investigation that he watched Med TV on his balcony.

The Court observes that the applicant has not adduced any evidence to show that the authorities resorted to surreptitious monitoring of his home or collected and stored information on his television viewing habits as part of a secret surveillance strategy ( cf the the Leander v. Sweden judgment of 26 March 1987, Series A no. 116 p. 22, § 48). In the Court’s opinion, the allegation that the applicant watched Med Tv was put to the applicant during the investigation opened by the Justice Inspection Office as part of the overall case against him that he was behaving in a manner incompatible with his office. There is nothing in the documentation submitted by the parties which would suggest that this allegation was anything other than one of the many third party reports on the applicant’s behaviour which were communicated to the Justice Inspection Office for investigation.

It follows that the applicant’s complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant states that he was punished for reading a daily newspaper which was a legal publication at the material time and for watching a television channel which broadcasts from abroad in his mother language, Kurdish. The applicant relies on Article 10 of the Convention, which provides:

“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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.”

In the applicant’s submission, publications such as “ Özgür Gündem ” are in lawful circulation and he has the same right as other individuals to read them and to inform himself abouts events in Turkey. The fact that he was a reader of these publications was no justification for conducting an investigation against him.

The Government maintain that the applicant was not disciplined solely on account of the fact that he watched Med Tv but for displaying his sympathy for the PKK. For example, the applicant tried to influence people by relating to them the articles which he read in “ Özgür Gündem ”, a publication of the PKK. The Government further refer to the testimony of Huseyin Kece in order to substantiate the disciplinary charges brought against the applicant. The Government state that the applicant acknowledged in his petition of 4 November 1996 to the Supreme Council requesting rectification of the latter’s decision that his attitude was incompatible with the need to maintain the public’s confidence in the impartiality of the judiciary. Furthermore, in his objection of 15 January 1997 the applicant accepted that “ Özgür Gündem ” was a PKK newspaper and that his declarations concerning the fight against terrorism endangered his impartiality as a judge.

In the Government’s submission, the investigations into the applicant’s conduct and the sanction imposed on him found their justification in the provisions of Article 10 § 2 of the Convention.

The applicant disputes the Government’s reliance on Huseyin Kece’s evidence and contends that the latter was a hostile witness given that the applicant had reported him to the Office of the Tufanbeyli Public Prosecutor in 1993 on suspicion of abusing his official functions. Furthermore, the applicant doubted whether the Inspector who led the investigation had sought to satisfy himself of the credibility of Huseyin Kece’s totally unfounded statements. The applicant affirms in this connection that he harbours no sympathy whatsoever for the activities of a terrorist organisation like the PKK. If he was indeed a sympathiser it would have been open to the authorities to charge him under the Penal Code or the prevention of terrorism legislation. No such charges were ever brought. The applicant further states that he never used the Kurdish language as a sign of support for the PKK but as a necessary part of his judicial life. Kurdish was his mother tongue and was spoken by his family in daily life. The use of the Kurdish language is not a criminal offence and cannot be considered a means to encourage sympathy for the PKK.

The applicant regards as completely incorrect the Government’s assertion that he conceded in his petition to the Supreme Council that his attitude was incompatible with his judicial duties and status. In his submission, the investigation was carried out not as regards his impartiality but as regards the fact that he described himself as being of Kurdish origin and read publications which although supported the PKK were lawful under domestic law.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant further complains that there is no appeal against disciplinary punishments handed down by the Supreme Council of Judges and Public Prosecutors. He invokes Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes at the outset that the proceedings initiated against the applicant did not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention. They were purely disciplinary in nature. Accordingly the applicant cannot rely on the procedural guarantees contained in that Article to dispute the fairness of the proceedings. The Court further notes that the Convention does not guarantee a right of appeal. In so far as the applicant complains that he had no effective remedy to contest the alleged interferences with his rights under Articles 8 and 10 of the Convention, it observes that the applicant was in fact able to appeal against the decision of 11 July 1996 of the Supreme Council to the Board for Examination of Objections. In these circumstances the applicant’s argument that he was denied an effective remedy cannot be sustained.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Finally the applicant complains that the Supreme Council of Judges and Public Prosecutors discriminated against him on the basis of his ethnic background. The applicant relies on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as ... national ... origin, association with a national minority, (...)”

The Government state that disciplinary proceedings were brought against the applicant only on account of his separatist views, not because of his Kurdish origin. The Government observe that the applicant continues to work as a judge and that he will be pardoned in accordance with the amnesty on disciplinary punishments given to state officials and that there will be no obstacle to his becoming a first level judge in the future.

The applicant replies that the authorities misconstrued the nature of his criticisms of the actions of the security forces in south-east Turkey on account of his Kurdish origin. Although the applicant accepts that, following the amnesty referred to by the Government, the disciplinary punishment was removed from his official employment record it still figured in his confidential record and this fact will continue to prevent him from becoming a first level judge in the future.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE the applicant’s complaints that the disciplinary sanction imposed on him infringed his right to freedom of expression and that he was discriminated against in the enjoyment of that right on account of his ethnic origin;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President