Communicated on 12 December 2016

SECOND SECTION

Application no. 53561/09 Cemal URAT against Turkey lodged on 4 September 2009

STATEMENT OF FACTS

1. The applicant, Mr Cemal Urat , is a T urkish national who was born in 1964 and lives in Mardin . He is represented before the Court by Mr M. Sadak , a lawyer practising in Istanbul.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

3. On 22 January 2000 the applicant, a primary school teacher in Mardin , was charged with membership of Hizbullah , a proscribed organisation in Turkey. Criminal proceedings against him were started in the Diyarbakır State Security Court.

4. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Diyarbakır Assize Court.

5. On 13 September 2004 the Diyarbakır Assize Court held that the applicant ’ s involvement with the terrorist organisation had been limited to handing in his r ésumé and attending its indoctrination sessions, which was therefore aiding and abetting rather than membership. Having regard to the fact that the crime had been committed before 23 April 1999, the court held that Law no. 4616 – which provided that criminal proceedings in respect of certain offences committed before that date would be suspended – was applicable. It thus suspended the criminal proceedings against the applicant.

6. On 28 September 2007 the court changed the charge against the applicant under Article 168 § 2 to aiding and abetting an illegal organisation under Article 169 of the former Criminal Code, and discontinued the proceedings in respect of that charge on account of the expiry of the five ‑ year prosecution period.

2. Disciplinary proceedings against the applicant

7. On 27 January 2000, owing to the fact that the applicant was being prosecuted on charges of membership of a terrorist organisation, the Mardin Directorate of Education initiated a disciplinary investigation against him. Nine teacher colleagues, as well as the principal and vice-principal of the primary school, were questioned within the context of that investigation. Three teachers briefly stated that they had been aware that the applicant had been a Hizbullah supporter or had heard such rumours. One teacher stated that he believed the applicant was a Hizbullah supporter as he had seen his wife wearing a burqa. The principal and vice-principal stated that they had not witnessed or been made aware of anything to suggest that the applicant had connections with the illegal organisation. The relevant parts of the investigation report dated 30 June 2000 read:

“...On 17 January 2000, in an investigation into the activities of the Hizbullah terrorist organisation in Istanbul, the applicant ’ s r ésumé was discovered on one of the computers confiscated from the organisation ’ s cell...The applicant said in his statement to the police that he had only mentioned a few details concerning his r ésumé to an individual named F.Ş. during a conversation they had had back in 1983. However, in his statement to the public prosecutor, he denied his police statement and his involvement in Hizbullah . He stated that he had refrained from signing the statement at the police station because the report did not reflect his exact statement.

...

In the indictment dated 29 February 2000, the applicant was alleged to have participated in activities on behalf of Hizbullah ... and to have given [them] his r ésumé ...The applicant has currently been released pending trial.

...

However, having regard to the seizure report, the applicant ’ s statements to the police and public prosecutor and the fact that his r ésumé was found on a computer confiscated from one of the organisation ’ s cells, it can clearly be concluded that the applicant is a member of the Hizbullah terrorist organisation who acted as a messenger, recruited new members and taught its ideologies on its behalf.

In his statements to the police and public prosecutor, the applicant acknowledged that he had taught the ideologies to young people and children. Unfortunately, it is a known fact that people like him have been indoctrinating young people into the ways of Hizbullah in mosques under the guise of a religious education. It is especially ironic that these are people holding teaching posts in educational institutions in the Turkish Republic.

...

Moreover, some of the teachers and principals [names are listed of the public school] have acknowledged that they were aware of the rumours that the applicant was a Hizbullah supporter.

In summary, the nature of the criminal proceedings against the applicant on charges of membership of a terrorist organisation fall within the ambit of section 125 § E (a) of Law no. 657, which provides for the dismissal [of civil servants] for disrupting the discipline and harmony of the working environment for ideological and political purposes.”

8. On 24 October 2000 the applicant was asked to submit a written defence statement in response to the allegations. In submissions dated 27 November 2000 he denied all the allegations against him. It appears that after being able to consult the investigation file, he submitted additional submissions on 26 March 2001 denying having given Hizbullah his r é sum é and highlighting obvious spelling mistakes, discrepancies and inaccurate information in the copy contained in the file to demonstrate that it had been prepared by someone else without his knowledge.

9. Relying on the findings of the disciplinary investigation report, on 18 April 2001 the Supreme Disciplinary Board of the Ministry of Education dismissed the applicant from public service pursuant to section 125 § E (a) of the Civil Servants Act (Law no. 657 of 14 July 1965). The relevant parts of the decision read:

“...The acts attributed to the applicant: Membership of the illegal terrorist organisation Hizbullah and carrying out activities for the organisation, disrupting workplace discipline and harmony at the institution for ideological and political purposes.

...

Based on the examination of the information and documents in the case file, the veracity of the acts attributed to the applicant and their continuous nature has been established. Having regard to the importance of the teaching post and the characteristics and seriousness of the offence, it has not been deemed appropriate to impose a lighter penalty. Based on the following considerations, the recommendation for the applicant ’ s dismissal was accepted unanimously...”

10. On 4 August 2001 the applicant brought a claim against the Ministry of Education in the Diyarbakır Administrative Court, challenging his dismissal. He requested a stay of execution of the dismissal order because criminal proceedings were still pending against him.

11. On 10 January 2002 the Diyarbakır Administrative Court rejected his request on the grounds that it did not meet the legal requirements.

12. Relying on his right to be presumed innocent, on 18 February 2002 the applicant challenged that decision in the Regional Administrative Court.

13. On 4 March 2002, having regard to the fact that the applicant had been dismissed on account of his alleged membership of a terrorist organisation, the Regional Administrative Court granted the applicant ’ s request for a stay of the dismissal decision and concluded that only the competent criminal court could hold him criminally liable. In this connection, it held that the applicant had been charged with a criminal not disciplinary offence, the determination of which could only be made by a competent criminal court. It therefore held that he could not be dismissed from public service for membership of a terrorist organisation without a final conviction. If he were convicted, however, he could be dismissed for no longer qualifying for civil service.

14. On 3 December 2002 the Diyarbakır Administrative Court adjourned its examination of the merits of the case pending the outcome of the criminal proceedings.

15. On 14 April 2005, shortly after the Diyarbakır Assize Court ’ s decision to suspend the criminal proceedings, the Diyarbakır Administrative Court rejected the applicant ’ s request for the dismissal decision to be quashed. The relevant parts of the judgment read:

“The applicant and other civil servants holding various posts in the district have been the subject of a disciplinary investigation in connection with their alleged acts of ‘ disrupting workplace discipline and harmony for ideological and political purposes; participating, provoking, encouraging or otherwise aiding and abetting acts including boycotts, occupations, obstructions, slowdowns and strikes or being collectively absent from work. ’ The Ministry of Education ’ s investigation report dated 30 June 2000 recommended the applicant ’ s dismissal from public service because [he] was a member of the Hizbullah terrorist organisation.

Despite the fact that the criminal proceedings against the applicant [on charges of membership of a terrorist organisation] have been suspended, it is an established principle of case-law that exoneration from criminal liability does not preclude the finding of a disciplinary offence. Hence, following an examination of the case file and investigation report, the court finds it established that the applicant committed the disciplinary offence in so far as he gave the organisation his profile and attended its lessons and meetings.”

16 . On 21 January 2005 the applicant appealed against the judgment of the Diyarbakır Administrative Court in the Supreme Administrative Court, requesting a stay of the decision calling for his dismissal from service. He challenged the grounds on which he was dismissed, arguing that membership of a terrorist organisation was not one of the disciplinary offences listed in the Civil Servants Act which warranted dismissal from public service. Moreover, he relied on his right to be presumed innocent since the criminal proceedings against him had been suspended and there had been no definite finding of guilt. He also argued that the Diyarbakır Administrative Court ’ s failure to give reasons in its judgment implied that it had not established the facts giving rise to the disciplinary action independently.

17. In a decision dated 27 September 2005 the Supreme Administrative Court dismissed the stay of the dismissal order without providing any further reasons. On 6 June 2006 it also rejected the applicant ’ s appeal.

18. On 21 June 2005 the applicant requested a stay of his dismissal order and rectification of the judgment of 14 April 2005 in the Supreme Administrative Court, maintaining the same grounds of appeal as in his previous appeal (see paragraph 16 above).

19. The Supreme Administrative Court dismissed the applicant ’ s requests on 13 February 2008 and 14 April 2009 respectively, without responding to his arguments.

B. Relevant domestic law

20. Section 125 of the Civil Servants Act (Law no. 657 of 14 July 1965), in so far as relevant, provides:

“E....The following acts and conduct require dismissal from the public service:

(a) Disrupting workplace discipline and harmony for ideological and political purposes; participating, provoking, encouraging or otherwise aiding and abetting acts including boycotts, occupations, obstructions, slowdowns and strikes or being collectively absent from work;”

21. Law no. 4616, in so far as relevant, provides:

“4. In respect of offences committed before 23 April 1999 which carry a maximum prison sentence of ten years:

- where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended;

- where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended.

If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached.

COMPLAINTS

The applicant complains under Article 6 § 2 of the Convention that his dismissal from public service on account of the decision of the disciplinary body which declared him guilty of membership of a terrorist organisation despite the absence of a criminal conviction against him violated his right to be presumed innocent.

He also complains under Article 6 § 1 that the administrative courts acted ultra vires in upholding the dismissal order on the basis of his alleged membership of a terrorist organisation despite the offence not being one of the exhaustive grounds for dismissal listed in the Civil Servants Act. Lastly, he complains that the administrative courts failed to provide adequate reasoning in their judgments.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the relevant disciplinary authorities have authority to rule on whether the applicant was a member of a terrorist organisation – which is classified as a criminal offence under Turkish criminal law? In this connection, were the reasons given by the administrative courts relevant and sufficient for the purposes of Article 6 § 1 of the Convention?

2. Having regard to the reasoning and wording of the Supreme Disciplinary Board ’ s dismissal decision of 18 April 2001 and the judgment of the Diyarbakır Administrative Court upholding that decision, was the applicant ’ s right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the disciplinary proceedings, which found it established that he was a member of a terrorist organisation, despite the fact that criminal proceedings against him on charges of membership of a terrorist organisation were still pending before a criminal court contravene his right to be presumed innocent (see Çelik (Bozkurt) v. Turkey , no. 34388/05 , 12 April 2011) ?

The Government are requested to submit a copy of the disciplinary investigation file in support of their reply, as well as any other documents pertaining to the criminal proceedings that they deem relevant for the examination of the case.