SECOND SECTION

DECISION

Application no . 65182/10 Recep YILDIZ against Turkey

The European Court of Human Rights (Second Section), sitting on 24 January 2017 as a Chamber composed of:

Julia Laffranque, President, Işıl Karakaş, Nebojša Vučinić, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 22 October 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Recep Yıldız, is a Turkish national who was born in 1978 and lives in Rize. He was represented before the Court by Mr U. Ateş, a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.

1. Criminal proceedings

3. On 14 July 2005, in connection with a police investigation into the alleged activities of a drug-trafficking operation, large quantities of heroin were seized in Küçükçekmece (a suburb of Istanbul) and a number of suspects were arrested.

4. On 28 August 2005 a police officer who had not been involved in that operation told his superior that certain police officers, including the applicant, had been offered money in exchange for leaving one of the suspects out of the investigation. He further alleged that some police officers in the unit had each received the sum of 1,000 euros (EUR) from the applicant in return for their turning a blind eye. The police officer ’ s superior prepared a report to that effect and initiated a disciplinary investigation concerning the allegations of bribery.

5. On the basis of the findings of the investigation concerning those allegations, the investigators in charge of the disciplinary investigation lodged a complaint with a public prosecutor and asked for a criminal investigation to be instigated against those police officers, including the applicant.

6. Accordingly, on 23 March 2006 the applicant was charged with bribery. A criminal trial was opened in the Istanbul Assize Court.

7. After hearing witnesses and assessing the evidence before it, the Istanbul Assize Court held that the accusations concerning the applicant and the co-accused did not go beyond hearsay and that there was nothing in the case file that proved the accused persons ’ guilt. It therefore acquitted the applicant and his co-accused of bribery on 29 September 2006.

2. Disciplinary proceedings

8. On 8 June 2007, on the basis of the findings of the disciplinary investigation, two sanctions were imposed on the applicant which deferred his advancement to a higher rank for a period of 16 months and of 24 months respectively. The relevant parts of the decision read:

“Notwithstanding the fact that the charges against the accused police officers were not proved and that they have consequently been acquitted in the criminal proceedings and that the legal constituents of the crime of bribery were lacking, under section 131 of the Civil Servants Act the opening of criminal proceedings against a civil servant cannot delay disciplinary proceedings, which can be conducted in parallel with such proceedings. Furthermore, exoneration of criminal liability does not prevent the imposition of disciplinary sanctions. In the light of the foregoing, bearing in mind the fact that the report in question was signed by the supervising police officer and four senior officers and that the statement of Ş.G. confirming the veracity of certain aspects of the allegations and the statement of [police officer] N.İ. confirming the statement of the latter ... [the disciplinary board] considers that the applicant ’ s conduct constituted the disciplinary offence in question. Notwithstanding the fact that the misconduct in question cannot be characterised as criminal, it was still inappropriate and was of such a nature as to diminish the respect and the trust associated with the functions of a police officer ... Therefore, the applicant ’ s conduct amounts to “acts and conduct that discredit the respect and trust associated with the official function of a police officer”, ... as well as to “neglect of duty” in so far as the applicant left one suspect out of the investigation, despite there being strong suspicions [that he had been involved] ...”

9. On 4 August 2007 the applicant lodged a claim against the Ministry of Interior with the Kastamonu Administrative Court, challenging the disciplinary sanctions imposed on him.

10. On 30 November 2007 the court set aside both disciplinary punishments, holding that the findings of the investigation giving rise to the impugned disciplinary action had contained no proof beyond hearsay and accordingly concluding that the allegations were unfounded.

11. The Office of the Istanbul Governor lodged an appeal with the Supreme Administrative Court against the decision of the Kastamonu Administrative Court; the appeal was dismissed and the decision of 30 November 2007 was upheld and became final on 21 March 2013.

12. Meanwhile, on 15 December 2005 the applicant underwent an appraisal of his work. The appraisal was carried out by his immediate superior and signed by a senior police chief. He was given an unsatisfactory score of 56 out of 100 and received a disciplinary warning to this effect on 3 March 2006. The warning briefly stated that the applicant ’ s appraisal score was unsatisfactory and that unless he improved his score he could be subject to the relevant provisions of the Regulation on the Personnel Records of Civil Servants ( Devlet Memurları Sicil Yönetmeliği ).

13. On 27 March 2006 the applicant lodged a complaint with the Directorate of the Security Forces, contesting his poor appraisal score and requesting clarification of the circumstances of his appraisal.

14. On 10 May 2006 the applicant received a letter stating that his complaint had been examined on the basis of the documents relating to his appraisal and that his appraisal had been conducted in accordance with the law and the applicable procedure.

15. On 14 July 2006, the applicant instituted administrative proceedings before the Istanbul Administrative Court, requesting the court to stay and to set aside the appraisal decision of 3 March 2006. He argued that his superiors had only taken into account the allegations of bribery against him in connection with the narcotics operation carried out in 14 July 2005 and had failed to respect his right to the presumption of innocence given that the criminal proceedings concerning the same allegations were still pending. In that respect, he submitted that his appraisal had been biased. He further submitted that, owing to the fact that his appraisal had been poor, he had been transferred to a remote city and was therefore prevented from continuing his master ’ s studies at Marmara University in Istanbul.

16. During the course of the proceedings the applicant submitted to the Istanbul Administrative Court the judgment of 29 September 2006 acquitting him of the charges of bribery.

17. During the course of the proceedings the court requested from the Ministry of Interior the file regarding the applicant ’ s appraisal, as well as his appraisal records over the previous five years. The applicant ’ s previous appraisal in respect of the years 2003 and 2004 had been excellent, with a score of 95. No appraisals had been carried out in the years 2000 and 2002 owing to the fact that the applicant had taken unpaid leave. Lastly, for the year 2001, the applicant ’ s appraisal score had been mediocre, with a score of 74.

18 . On 31 October 2007 the court dismissed the applicant ’ s request and held that his appraisal had been carried out in accordance with the law and had no appearance of arbitrariness. The relevant parts of the judgment read:

“Appraisal exercises are carried out annually to assess a civil servant ’ s competence, skills, output and his or her professional conduct. On the one hand, an appraisal report necessarily contains observations that are based on the subjective impressions of the appraiser – which need not be substantiated by concrete evidence. In this last respect, however, if an appraisal report contains negative feedback in terms of a civil servant ’ s productivity, competence and work discipline, these points need to be substantiated with reasons ... On the other hand, all acts of the State are subject to judicial review ... As a safeguard against arbitrariness, appraisal reports need to contain reasons for their conclusions ... On the basis of the examination of the case file, it is understood that the applicant was implicated in a disciplinary investigation involving allegations of bribery. Following the disciplinary investigation he received two deferments of advancement to a higher rank of durations of 16 months and 24 months, respectively. Due to the fact that the applicant had received disciplinary sanctions, his appraisal report indicated that the applicant had demonstrated a tendency to put his own interests first [ tavassuta düşkünlük ].

Therefore, the court finds it established that the ... disciplinary misconduct attributed to the applicant was proved during the course of the disciplinary investigation and that the poor appraisal based on the perception of his tendency to put his own interests first is not incompatible with the law.”

19. The applicant appealed against the decision to the Supreme Administrative Court, reiterating the arguments he had raised before the Istanbul Administrative Court and further submitting that the Administrative Court had found a very similar appraisal report to be incompatible with the law in the case of a colleague who had also been subject to the same disciplinary proceedings concerning the narcotics operation of 14 July 2005. In the context of those other proceedings concerning the applicant ’ s colleague, the Kastamonu Administrative Court, acting as the court of first-instance, had held on 25 April 2008 that:

“The appraisal system is the legal basis on which a civil servant receives a promotion, demotion or salary increase, or obtains a transfer to a different city or to a different function ... In consideration of the significance of the legal consequences of the appraisal and having regard to the legal nature of the appraisal report, the reasons set out in the appraisal report must clearly explain the conclusions reached and also support such conclusions with concrete background information and documents.

...

In the circumstances of the present case, the court had regard to the plaintiff ’ s appraisal reports for the years preceding 2006 and noted that his appraisal reports concerning the previous five years had consistently been excellent. However, the ‘ mediocre ’ appraisal score given to the plaintiff for the year 2006 was not substantiated with reasons or documents and contained no explanation as to why the applicant had gone from excellent to mediocre. On the basis of the foregoing, the court sets aside the appraisal report for not being compatible with the law.”

20. On 27 April 2009 the Supreme Administrative Court rejected the applicant ’ s appeal as ill-founded and found the impugned decision to be in conformity with the law and the applicable procedure. One judge (out of five) expressed a dissenting opinion. She stated, in particular, the following:

“The disciplinary sanction received by the applicant does not in itself merit a poor score in respect of all the areas assessed in the appraisal report. For this reason, I do not agree with the majority that the appraisal was in total conformity with the law.”

21. The applicant lodged an appeal, seeking the rectification of the decision of 31 October 2007. In its decision of 27 January 2010, served on the applicant on 17 May 2010, the Supreme Administrative Court rejected that appeal.

B. Relevant domestic law

22. Section 2 of the Disciplinary Regulation of the Security Forces ( Emniyet Örgütü Disiplin Tüzüğü ), in so far as relevant, provided as follows :

“ Disciplinary measures shall comprise one of the following:

...

D) Lengthy deferment of advancement: advancement to a higher grade may be deferred for a period of twelve, sixteen, twenty or twenty-four months.”

23. Section 8 of the Disciplinary Regulation of the Security Forces, in so far as relevant, set out the possible grounds for a police officer ’ s dismissal from the police force as follows:

“The following acts, procedures, behaviour and conduct incur expulsion from the profession ...

6. Larceny, robbery, fraud, extortion, bribery, embezzlement, defalcation, rape, sexual assault, forgery, counterfeiting, intentional killing or attempting any of these offences, abuse of trust, bearing false witness, perjury, false accusation, slander ...”

24. Section 7 of the Disciplinary Regulation of the Security Forces, in so far as relevant, defined the types of misconduct sanctioned by a lengthy deferment of advancement as follows:

“B) Deferment for a period of 16 months

1 – Conduct that is incompatible with the reputation and trust inherent in the official function.

...

D) Deferment for a period of 24 months

...

2 – Neglecting one ’ s duty by failing to take the necessary actions against a suspect ...”

25. Section 17 of the former Regulation on the Personnel Records of Civil Servants ( Devlet Memurları Sicil Yönetmeliği) provided, in so far as relevant, as follows:

“Overall assessment of the Civil Servant ’ s Conduct:

The appraiser shall take into consideration

a) Appearance (professional attire);

b) Intelligence and his or her ability to learn;

c) Ability to persevere, the desire to excel, [and] the ability to be discreet;

d) [A]ddictions such as gambling and alcohol consumption that are not compatible with civil service;

e) Personality traits such as reliability, preoccupation with one ’ s own self-interest, honesty, tendency to gossip [or feel] jealousy ...”

26 . Section 24 of the former Regulation on the Personnel Records of Civil Servants provided, in so far as relevant, as follows:

“A civil servant who receives two poor appraisal scores in succession shall be assigned to a different appraisal unit and in the event that he [again] receives a poor score, he shall be dismissed from the profession ...”

COMPLAINTS

27. The applicant complained under Article 6 of the Convention that the administrative proceedings concerning his negative appraisal report had not been fair and that his assessment had been based on the presumption that he was guilty of a crime which he in fact had not committed. The applicant further alleged that the administrative courts ’ decisions had not been consistent in that the same administrative courts which had set aside the disciplinary sanctions on the ground that the allegations had not been corroborated by evidence had nevertheless upheld his negative appraisal which, according to the applicant, had been based entirely on the same disciplinary investigation and on the assumption that he had indeed taken bribes. Lastly, the applicant complained that the administrative court had given a contradictory judgment in the case of another police officer who had been subject to the same investigation proceedings but had nevertheless been successful in having his negative appraisal report set aside.

THE LAW

A. Alleged violation of Article 6 § 2 of the Convention

28. The applicant submitted that his appraisal report for the year 2005 – and the administrative courts that had reviewed that report – had disregarded his right to the presumption of innocence. Article 6 § 2 of the Convention provides that:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

1. General principles

29. The Court reiterates that Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. Viewed as a procedural guarantee in the context of a criminal trial, the presumption of innocence imposes requirements in respect of, inter alia , the burden of proof, legal presumptions of fact and law, privilege against self-incrimination, pre-trial publicity and premature expressions, by the trial court or by other public officials, of a defendant ’ s guilt (see Allen v. the United Kingdom [GC], no. 25424/09, § 93, ECHR 2013 and the cases cited therein for a summary of the case-law).

30. However, in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory ( ibid., § 94 ). Where criminal proceedings end with acquittal, the lack of a person ’ s criminal conviction shall, in compliance with the principle of the presumption of innocence, be preserved in any other proceedings of whatever nature, provided that such proceedings were linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2 (ibid., §§ 99 ‑ 102 and § 104; see also Y v. Norway , no. 56568/00, § 39, ECHR 2003 ‑ II (extracts); Ringvold v. Norway , no. 34964/97, § 41, ECHR 2003 ‑ II; and Moullet v. France (no. 2) (dec.), no. 27521/04, CEDH 2007 ‑ X).

31. In order for the second aspect of Article 6 § 2 to be applicable to subsequent proceedings, the Court requires an applicant to demonstrate the existence of a link between concluded proceedings and subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant ’ s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant ’ s possible guilt (see Alkaşı v. Turkey , no. 21107/07, § 25, 18 October 2016, and Allen , cited above, § 104).

2. Application of these principles to the present case

32. The Court will have regard, in the light of the above principles, to the applicability of Article 6 § 2 of the Convention to the administrative proceedings in respect of the applicant ’ s appraisal.

33. The Court observes at the outset that the impugned statement concerning the applicant ’ s “tendency put his own interests first ” made in the course of the administrative proceedings (see paragraph 18 above) was restricted to the applicant ’ s professional conduct and did not refer, comment on or otherwise question the outcome of the criminal proceedings which had been brought against him concerning the charges of bribery. Indeed, no mention was made of the contents of the case file or the outcome of the criminal trial. Both the appraisers and the Istanbul Administrative Court (when reviewing their decision) assessed the applicant ’ s conduct in the light of the disciplinary regulations, which classified the applicant ’ s acts and omissions as “neglect of duty” and “conduct that was incompatible with the reputation of the police force”. The fact that the disciplinary investigation and the deferment of advancement sanctions were pending before another administrative court was not relevant to the examination of the Istanbul Administrative Court for its examination of the appraisal process. The same consideration holds true for the examination conducted by this Court as far as the applicant ’ s complaint under Article 6 § 2 of the Convention is concerned.

34. Turning to the reference to the applicant ’ s “tendency to put his own interests first ” the Court notes that the impugned statement carries a negative connotation and brings to mind the act of bribery, an act of which the applicant had stood accused and for which he had subsequently been found not guilty. However, having regard to the nature and the context of the appraisal process, the statement reflected a value judgment by the applicant ’ s superiors in respect of his personality and not as a statement that imputed criminal liability to the applicant. The Court therefore holds that this statement alone in the context of the appraisal proceedings did not create a link between the criminal and the administrative proceedings and that it therefore does not justify the extension of Article 6 § 2 guarantees to the latter. In the light of the foregoing, it follows that the applicant ’ s complaint under Article 6 § 2 of the Convention is not within the scope of the Convention, and must be dismissed as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.

B . Alleged violation of Article 6 § 1 of the Convention

35. The applicant complained under Article 6 of the Convention that the appraisers and the administrative courts reviewing that decision had been biased and inconsistent in their approach. Even though the very same administrative courts had set aside the disciplinary sanctions imposed on him, they had upheld the appraisal report, which had been entirely based on the fact that the applicant had been subject to disciplinary sanctions that had been subsequently set aside. The applicant further complained that the same administrative courts had set aside the appraisal report of a police officer who had been implicated in the same disciplinary proceedings.

36. The relevant parts of Article 6 § 1 of the Convention read as follows:

“In the determination of his civil rights, everyone is entitled to a fair ... hearing ... by a ... tribunal ...”

37. The Court recalls that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “ contestations ” (disputes) over civil rights within the meaning of Article 6 § 1 (see Biagioli v. San Marino (dec.), 64735/14, 13 September 2016 and the cases cited therein).

38. In that connection, the Court reiterates that the procedural guarantees of Article 6 § 1 apply to all litigants falling into this category and not only those who have not avoided a sanction interfering with their right to continue practising their profession (see A. v. Finland (dec.), 44998/98, 8 January 2004).

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2017 .

             Stanley Naismith Julia Laffranque Registrar President