Published on 26 April 2021

SECOND SECTION

Application no. 58073/17 U.Y . against Turkey lodged on 16 June 2017 communicated on 7 April 2021

STATEMENT OF FACTS

1 . The applicant, Mr U. Y. is a Turkish national, who was born in 1978 and lives in Istanbul. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms Z. Karaca Boz, a lawyer practising in Ankara.

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.

3 . On 13 February 2008, when the applicant had recently been appointed as a civil servant in the position of an assistant inspector at the General Directorate of Çaykur , a State-owned company, he was involved in an incident outside of working hours in which he was battered by a group of men, including a nineteen year old who accused the applicant of sexual harassment. According to the incident report drawn up by the police, the applicant was brought to the police station by those men in a state indicating that he had been assaulted. The men claimed to the police that the applicant was homosexual and had attempted to harass their friend, who had felt insulted and therefore had battered the applicant. The applicant denied the accusations of sexual harassment and told the police officers that the men had tried to rob him and then had battered him, calling him a fag ( ibne ).

4 . The public prosecutor decided not to prosecute the applicant on charges of sexual harassment for lack of evidence. On the other hand he initiated criminal proceedings against the perpetrator before the Trabzon Magistrates ’ Court on charges of battery.

5 . On 2 October 2009 the Trabzon Magistrates ’ Court found the perpetrator guilty of the offence of simple battery but reduced his sentence on account of provocation by the applicant, who had - according to the perpetrator ’ s unrebutted claims - grabbed the perpetrator ’ s genitals and proposed sexual intercourse. The pronouncement of the judgment of the Magistrates ’ Court was suspended in accordance with Article 231 of Code of Criminal Procedure.

6 . The applicant informed his superiors of the incident and the ensuing judicial process on 9 February 2009. An administrative investigation was thereafter started against the applicant. Within the scope of this investigation, the investigators asked the applicant to give a statement shedding light on the events of the night of 13 February 2008. They also examined the statements taken in the police station and the investigation file of the public prosecutor. Furthermore, they asked for statements from the applicant ’ s co-workers who had picked him up from the police station on the night of 13 February 2008.

7 . In their report of 21 July 2009, the investigators noted that the applicant had met the perpetrator on one occasion before the incident and that he had started a friendship with him. The investigators commented that a friendship of this sort could raise questions and doubts given that the applicant did not have anything in common with the nineteen-year-old, having to regard to the difference of age between them as well as the lack of any professional or cultural bonds. The investigators concluded that the applicant ’ s version of the events was not credible having regard to the statements of the applicant at the police station and those of the perpetrator. Furthermore, in their view, the following elements warranted the conclusion that the applicant had provoked the perpetrator due to an indecent proposal: the fact that it had been the perpetrator who had brought the applicant to the police station and complained about him; the fact that the perpetrator had rejected the applicant ’ s offer to settle the case; and finally, the fact that the perpetrator ’ s sentence had been reduced.

The investigators went on to add that they could not conclusively say that there had been sexual harassment on the part of the applicant but that his actions giving rise to the event had demonstrated a weakness in his behaviour and that it had been incompatible with the position he held as an assistant inspector and the irreproachable behaviour expected from public servants.

8 . On the basis of those conclusions and citing section 28 of the Regulation on the Inspection Board of Çaykur , they recommended that the applicant be removed from the position of assistant investigator and transferred to a position elsewhere.

9 . On 30 March 2010 the applicant was transferred to Istanbul and demoted to the position of a warehouse officer.

10 . On 11 May 2010 the applicant brought a case before the Istanbul Administrative Court challenging his transfer and demotion. He submitted that the fact that the investigators had relied on the reasoning of the Trabzon Magistrates ’ Court ’ s decision where that court had stated that it reduced the sentence of the perpetrator on the basis of a provocation on his part had been incompatible with his right to presumption of innocence. He contended in that respect that the public prosecutor had decided not to prosecute the charges against him on sexual harassment and that in the absence of a conviction the administrative authorities had treated him as guilty of the offence of sexual harassment. He further argued that the investigators had overstepped their authority by investigating an incident that concerned his private life only.

11 . On 13 October 2011 the Istanbul Administrative Court dismissed the case. After summarising the events and the arguments of the parties, the court held that it was sufficiently clear that the applicant had sexually harassed the person in question and the act had not been compatible with the irreproachability of public service.

12 . On 16 December 2014 the Supreme Administrative Court upheld the decision of Istanbul Administrative Court of 13 October 2011.

13 . On a subsequent appeal by the applicant, the Supreme Administrative Court rejected the rectification of its decision of 16 December 2014 without further reasoning. While the opinion of the rapporteur judge, which appeared on the front page of the decision of the Supreme Administrative Court, indicated that the Istanbul Administrative Court of 13 October 2011 decision could be upheld by correcting the impugned reasoning, the Supreme Administrative Court did not incorporate or endorse that opinion in its ruling.

14 . On 13 April 2016 the applicant lodged an individual application before the Constitutional Court, complaining of an infringement of his rights under Articles 6 §§ 1 and 2, 7, 8 and 14 of the Convention as well as Article 1 of Protocol No. 1 In that respect, he argued that he had been discriminated against on the basis of sexual orientation and that the administrative authorities had overstepped their authority by focusing the investigation entirely on the alleged act of sexual harassment and the fact that he had developed a friendship with a younger man. The questions that were asked by the investigators in the course of the investigation had been related to his private life only and had nothing to do with his professional performance or alleged misconduct at work. Finally he argued that his demotion had adverse consequences on his career and job security and that therefore he was likely to suffer economic loss.

15 . After deciding to examine the applicant ’ s complaints only under Articles 6 §1 (overall fairness of the proceedings), 6 § 2 and 14 of the Convention, the Constitutional Court decided to dismiss the application for being manifestly ill-founded on 13 December 2016. In respect of the alleged violation of the applicant ’ s right to presumption of innocence, the Constitutional Court held that the Supreme Administrative Court had corrected the impugned reasoning of the lower court and had qualified the applicant ’ s involvement in the incident of 13 February as being incompatible with public service, a finding which was not contrary to the presumption of innocence.

16 . Relevant provisions of the Regulation on the Inspection Board of Çaykur , published in the Official Gazette of 10 April 1994, provide as follows:

“ 12 . Inspectors must refrain from any behaviour that would damage the irreproachability and respect of the position in the district where they work.

Inspectors shall not,

a) interfere with the seizure of asset processes;

b) edit, alter or add their opinion to books, records and documents;

c) develop personal relations with persons who are subject to an inspection or audit process except for those social interactions that are deemed necessary;

d) disclose confidential information.

28 . During their term as assistant auditors, and without waiting for them to sit the auditor exam, those whose conduct is established as incompatible with the position and career of an auditor shall be transferred to another position in the civil service.”

COMPLAINTS

17 . The applicant submitted that despite the fact that he had been the victim of a battery which had been conclusively established by the Trabzon Magistrates ’ Court, he had been treated as a criminal by the administrative authorities for an offence for which he had not even been prosecuted. Relying on Article 6 § 2 of the Convention, he complained that the administrative and judicial authorities had violated his right to presumption of innocence by transferring and demoting him. He considered that the rectification decision of the Supreme Administrative Court could not be considered to have remedied the situation.

18 . Under Article 8 of the Convention, he submitted that the administrative authorities had taken action against him based on an event which had taken place outside of work and concerning a friendship the applicant had tried to develop in his private life. The way the authorities had framed their investigation around the applicant ’ s sexual orientation and the questions they had asked about the incident were not only irrelevant to his work but also prejudicial, discriminatory and unlawful.

19 . Finally, the applicant complained that the above-mentioned alleged breach of his rights under Article 8 resulted from a discriminatory intent present in the State authorities ’ conduct, contrary to Article 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on account of the administrative investigation process resulting in his transfer and demotion? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Denisov v. Ukraine [GC], no. 76639/11, §§ 92-117, 25 September 2018; Özpınar v. Turkey , no. 20999/04, §§ 45-48, 19 October 2010; and Yılmaz v. Turkey , no. 36607/06, §§ 37-41 4, June 2019)?

2. Has the applicant suffered discrimination on account of his actual and/or perceived sexual orientation contrary to Article 14, read in conjunction with Article 8 of the Convention?

3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, given the impugned reasoning in the Istanbul Administrative Court ’ s decision of 13 October 2011 that the sexual harassment had clearly taken place (see, for example, Seven v. Turkey , no. 60392/08 , § 56, 23 January 2018)? Was the Constitutional Court ’ s assessment in finding that the Supreme Administrative Court had cured the impugned reasoning accurate, given that the decision of the Supreme Administrative Court had upheld the Istanbul Administrative Court ’ s decision without any amendments?