SECOND SECTION

Application no. 21107/07 Ayten ALKAÅžIBENLÄ° against Turkey lodged on 9 May 2007

STATEMENT OF FACTS

The applicant, Ms Ayten Alkaş ı B enli , is a Turkish national, who was born in 1964 and lives in I stanbul. She is represented before the Court by Mr H. Gülşan , a lawyer practising in Istanbul.

A. The circumstances of the case

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

At the time of the events giving rise to this application, the applicant was working at the Directorate of National Palaces as a secretary . On an unspecified date in 2002, following on-going conflicts with a co-worker and upon the request of a certain professor M.Ü. from the same Directorate, the applicant was demoted to a lower position. When the applicant complained about her demotion to her friend M.G., the latter offered to call the professor M.Ü. , who was a common acquaintance, and seek reconciliation between the parties for her possible reinstatement. The applicant accepted this offer.

It appears that subsequently, M.G. made a number of harassing phone calls to the professor with violent threats to hurt his son, accompanied by a ransom request. The professor in turn filed a criminal complaint against both M.G. and the applicant in relation to these threatening calls, which resulted in charges being brought on 3 December 2002 against M.G. for threatening the professor, and the applicant for inciting M.G.

In his statements during the criminal proceedings, M.G. admitted to having threatened the professor, but claimed that he had had no intention of hurting anyone. He asserted that he had only meant to scare the professor upon the applicant ’ s request.

The applicant, on the other hand, denied M.G. ’ s allegations. She claimed that although she had taken up M.G. ’ s offer to contact the professor for a settlement of the dispute which had caused her demotion, she had never instructed him to threaten or otherwise harass the professor.

On 27 October 2005 the Istanbul Assize Court convicted M.G. as charged, but acquitted the applicant on the ground of lack of sufficient evidence to corroborate the allegations against her . This decision, which was not appealed against by the defendants, was finalised on 4 November 2005.

In the meantime, on 31 December 2002, shortly after her indictment, the applicant was dismissed from the position she had been demoted to, without receiving any notice or severance pay. It appears that her employment contract was terminated under Article 17 of the now defunct Law no. 1475 ( Labour Law), without any further information as to the exact ground for dismissal under this provision.

On 30 October 2003 the applicant brought an action before the Bakırköy Labour Court to claim her notice and severance pay.

On 28 March 2006 the Bakırköy Labour Court turned down the applicant ’ s request. On the basis of its examination of the case-file before the Istanbul Assize Court, the labour court first found it established that the applicant had incited M.G. to commit the offences of threatening and requesting a ransom and had breached the relationship of trust with her employer. In the light of the foregoing findings, it then concluded that the termination of the applicant ’ s employment contract had been in accordance with Article 17 of Law no. 1475.

The applicant appealed against the decision of the Bakırköy Labour Court . In her appeal request she maintained that the labour court had erroneously based its decision on the fictitious statements made by M.G. during the criminal proceedings, in total disregard of the fact that she had been acquitted of incitement by the Istanbul Assize Court.

On 20 December 2006 the Court of Cassation upheld the decision of the Bakırköy Labour Court .

B. Relevant domestic law

Article 17 of Law no. 1475 ( Labour Law) , in force at the material time, provided as follows :

“Under the following circumstances, the employer may terminate a contract, whether for a definite or indefinite period, prior to its expiry or without complying with the proscribed notice periods:

I. For reasons of health

...

II. For conduct against ethical principles, good faith and the like

a) Misleading the employer by falsely claiming to possess certain qualifications and conditions essential for the contract, or by giving false information or making false statements at the time of entering into the contract;

b) Uttering statements or committing acts against the honour and integrity of the employer or a member of the employer ’ s family, or levelling groundless accusations against the employer in matters affecting the latter ’ s honour and integrity;

c) ...

d) Engaging in dishonest acts or acts contrary to allegiance such as abuse of trust, theft or disclosure of the employer ’ s trade secrets;

e) Committing an offence on the work premises which is punishable with imprisonment for more than seven days and which may not be suspended ;

...”

COMPLAINTS

Relying on Article 6 of the Convention, the applicant complains that notwithstanding her acquittal of the charge of incitement by a criminal court, the Bakırköy Labour Court upheld her dismissal on the ground that she had committed the offence in question . She further claims under this provision that the Bakırköy Labour Court based its decision on self-incriminating statements that she had made before the police in the absence of her lawyer.

QUESTION S TO THE PARTIES

Did the applicant ’ s dismissal from her job, despite her acquittal by the Istanbul Assize Court on the same facts, amount to a breach of her right to the presumption of innocence guaranteed by Article 6 § 2 of the Convention? In particular, did the finding of the Bakırköy Labour Court that the applicant had incited her friend to commit certain crimes, which is a criminal offence in itself, while the criminal court could not reach this conclusion, amount to an implication of guilt? On what legal ground exactly was the applicant dismissed from her job?

The Government are requested to submit the respective case-files pertaining to the criminal proceedings before the Istanbul Assize Court and the subsequent proceedings before the Bakırköy Labour Court, including a copy of the dismissal decision delivered by the applicant ’ s employer on 31 December 2002 .