SECOND SECTION

CASE OF SADRETT Ä° N GÃœLER v. TURKEY

( Application no. 56237/08 )

JUDGMENT

STRASBOURG

24 April 2018

FINAL

24/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sadrettin Güler v. Turkey ,

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

Robert Spano, President, Ledi Bianku, Işıl Karakaş , Nebojša Vučinić , Valeriu Griţco , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 3 April 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 56237/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sadretti n Güler (“the applicant”), on 12 November 2008 .

2 . The applicant was represented by Mr M. İriz , a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent .

3 . The applicant alleged a violation of his right to freedom of association as the disciplinary sanction of a warning had been imposed on him for his participation in trade union activities. Furthermore, he complained of the absence of a domestic remedy to challenge th e disciplinary sanction.

4 . On 26 April 2010 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1962 and lives in Istanbul .

6 . At the material time , the applicant was a civil servant in the Metropolitan Municipality of Istanbul and a member of the local branch of the Tümbel -Sen trade union , which is affiliated to the KESK ( Kamu Emekçileri Sendikaları Konfederasyonu – the Confederation of Public Employees ’ Trade Unions ).

7 . In April 2008 two of the largest trade unions, namely the DİSK ( Devrimci İşçi Sendikaları Konfederasyonu – Confederation of Revolutionary Workers ’ Trade Unions) and the KESK ( Kamu Emekçileri Sendikaları Konfederasyonu – Confederation of Public E mployees ’ Trade Unions) announced that they were planning a large scale demonstration in Istanbul for 1 May 2008 and that their members would be gathering to celebrate the Labour Day and to commemorate their friends who had lost their lives during the demonstrations of 1 May 1977 .

8 . In May 2008 the applicant was informed that a disciplinary investigation had been initiated against him for being absen t without leave on 1 May 2008 and he was asked to s ubmit his defence submission s . The applicant explained that he had participated in a demonstration or ganised by his trade union on that day to celebrate International Labour Day.

9 . Subsequently, t he applicant was given a warning as a disciplinary sanction owing to his being absen t without leave on 1 May 2008 pursuant to s ection 125 of the Civil Servants Act ( Law no. 657 ) .

10 . On 13 May 2008 the applicant objected to th e decision and requested its annulment.

11 . On 16 May 2008 the Disciplinary Board of the Istanbul Municipality dismissed the applicant ’ s objection , finding that the contested decision was in accordance with the law and that there were no grounds to annul i t.

II. RELEVANT DOMESTIC LAW

12 . A full description of the relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-17, 27 March 2007) , and İsmail Sezer v. Turkey (no. 36807/07 , §§ 14-21, 24 March 2015) .

13 . By Law no. 5892 , amending the Law on General and National Holidays , adopted on 22 April 2009, 1 May ( Labour Day) was designated as a public holiday.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

14 . The applicant complained that the warning he had been given as a disciplinary sanction for his participation in trade union activities had infringed his rights under the Convention. He relied on Article 6 of the Convention. However, the Court considers that this complaint falls to be examined from the standpoint of Article 11, which reads 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.”

15 . The Government contested that argument.

A. Admissibility

16 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

17 . The applicant complained that the disciplinary sanction that had been imposed on him for his participation in trade union activities had in fringed his rights under Article 11 of the Convention.

18 . The Government contested that argument.

19 . Before embarking upon the examination of the applicant ’ s complaint, the Court considers it important, as a preliminary issue, to look at the context in which the interference took p l ace. In this connection, it notes that at the material time, namely on 1 May 2008, the Labour Day was not a public holiday in Turkey and any public gathering by civil servants on that day was strictly forbidden . It was subsequently established as a public holiday on 22 April 2009 by Law no. 5892. The Court further takes note of the fact that the two largest trade unions, namely the DİSK ( Devrimci İşçi Sendikaları Konfederasyonu – Confederation of Revolutionary Workers ’ Trade Unions) and the KESK ( Kamu Emekçileri Sendikaları Konfederasyonu – Confederation of Public E mployees ’ Trade Unions) had made an announcement well in advance that their members would be gathering in Istanbul to celebrate the Labour Day and to commemorate their friends who had lost their lives during the demonstrations of 1 May 1977 (see Disk and Kesk v. Turkey , no. 38676/08, §§ 4-6, 27 November 2012).

20 . Turning to the facts of the present case, the Court observes that the applicant was a civil servant in the Istanbul Municipality . H e was also a member of the KESK, namely one of the trade unions which had organised and announced the demonstration of 1 May 2008. It is also clear from the case file that disciplinary proceedings were initiated against the applicant for being absent from work without leave and i n the course of the disciplinary proceedings against him , the applicant explicitly stated that he had been absent because he had participated in the demonstration organised by his trade union to celebrate the Labour Day. The disciplinary bodies were thus made explicitly aware of the reasons for his absence. Nevertheless, without the reasons for his absence being taken into account, th e applicant was subsequently given a warning , under Law no. 657, as a disciplinary sanction owing to his absence without leave.

21 . In their observations the Government asked the Court to dismiss the case on the ground that the applicant had not been sanctioned due to his participation in trade union activities but because of being absent from work without leave.

22 . The Court recalls that in its judgment of Karaçay v. Turkey (no. 6615/03, § § 37 -39 , 27 March 2007), it h ad found a violation of Article 11 of the Convention as the applicant had participated in a trade union activity. However in the present case the reasoning of the disciplinary sanction was the applicant ’ s absence from work without leave. In this connection, the Court notes that even before it became an official holiday in 2009, 1 May (Labour Day) was a highly symbolic day for trade union members, and was considered as a day of commemoration and celebration (see para. 19 above). The authorities could not have ignored the reason of his absence considering, all the more, that the demonstration was announced publicly by two of the largest trade unions and they were informed about i t . T h us, it is safe to presume that the authorities were well aware of the reasons of the applicant ’ s absence as t he demonstration in question was announced at the national level in advance . Moreover, it is of importance for the Court, in its assessment of the necessity of the interference under Article 11 § 2 of the Convention, that in the course of the investigation, the applicant had explained the reason of his absence by stating that he had participated in a trade union activity. Nevertheless, in their evaluation the disciplinary authorities failed to take into consideration, either explicitly or in substance, whether it was justified to issu e a warning pursuant to Section 125 of Law no. 657 in the particular circumstances of the case.

23 . In view of the foregoing, the Court notes that by participating in the demonstration organised by his trade union, the applicant exercised his right to freedom of assembly. Bearing in mind that the applicant, a civil servant working in the Istanbul Municipality, was absent on 1 May 2008 to participate in Labour Day demonstrations that were organised and announced by his trade union, namely the KESK, the disciplinary sanction complained of, although very light, was such as to dissuade trade union members from participation in trade union activities (see Karaçay v. Turkey , cited above, § 37, Kaya and Seyhan v. Turkey , no. 30946/04, § 30, 15 September 2009; and Şişman and Others v. Turkey , no. 1305/05, § 34, 27 September 2011 ) .

24 . Having regard to its case-law on the subject and in view of the above considerations , the Court considers that there has been a violation of Article 11 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

25 . The applicant complained that no remedy had been available to him under the domestic law in force at the relevant time by which to challenge the disciplinary sanction imposed on him. He relied on Article 6 of the Convention. The Court considers that this complaint should be examined from the standpoint of Article 13 of the Convention.

26 . The Government contested that argument.

27 . The Court observes that the legislation in force at the relevant time precluded any application to the administrative courts for the purpose of challenging the lawfulness of the disciplinary sanction of a warning or a reprimand imposed under s ection 125 of Law no. 657.

28 . The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of a lack of an effective remedy under Turkish law to allow applicants to challenge such disciplinary sanctions ( see Karaçay , cited above, § 44; Kaya and Seyhan , cited above, § 41; and İsmail Sezer v. Turkey , no. 36807/07 , § 66, 24 March 2015 ). It finds no reason to depart from that conclusion in the present case.

29 . Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 13 of the Convention.

III . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

30 . Lastly, the applicant cited Articles 6 and 14 of the Convention without substantiating his claims. He alleged that his right to a fair trial and to defend himself had been violated. He further argued that he had been discriminated against because of his membership of a trade union as he had been given a disciplinary sanction for his union activities.

31 . Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT , UNANIMOUSLY ,

1. Declares the complaints concerning the applicant ’ s right to freedom of association and his right to an effective remedy admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 11 of the Convention;

3 . Holds that there has been a violation of Article 13 of the Convention .

Done in English, and notified in writing on 24 April 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano              Deputy Registrar President