SECOND SECTION

Application no. 45028/07 Kemal COÅžKUN against Turkey lodged on 4 October 2007

STATEMENT OF FACTS

The applicant, Mr Kemal CoÅŸkun , is a Turkish national, who was born in 1964 and lives in Antalya.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 3 July 2004 the Samsun gendarmerie force received a phone call about a woman who had been heard crying for help in a white civilian car heading out the city. On the basis of the information received, the gendarmerie located the car, driven by the applicant, a police officer, in an isolated area outside the city. According to the incident report drawn up by the gendarmerie, the woman, identified as Ç.V., was crying when they approached the car and said that she had been kidnapped and beaten up by the applicant. There was blood around her mouth. Following preliminary evaluations at the place of the incident, both parties were taken to the gendarmerie station for their official statements. On the way to the station the applicant, who had been allowed to drive his own car, was caught trying to get rid of a knife, a hatchet and a mobile phone that he was hiding in the car. These articles were confiscated by the gendarmerie as evidence, along with a gun, duct tape, a rope, a blood-stained towel, handcuffs and a truncheon found in the applicant ’ s car in a subsequent search.

Upon arrival at the gendarmerie station, Ç.V. was at once brought before the Samsun Public Prosecutor, where she stated that she had been having an extra-marital affair with the applicant for a while, but wanted to break the relationship off because of his constant threats and pressure; that she had accepted to meet the applicant earlier that day to talk for one last time, but that after meeting in his car, the applicant had driven her out of the city without her consent, hit her stomach with a truncheon and beaten her, tied her hands with a rope and threatened to assault her sexually.

In his statement to the public prosecutor, the applicant admitted that he had started seeing Ç.V. two years before to help her through her divorce, including financially. However, over time, Ç.V. had become very demanding and aggressive, and had threatened to expose their relationship and spread lies about him numerous times. He denied the allegation that he had kidnapped Ç.V. and claimed that it was she who had wanted to meet. He claimed that after they had met in the car, she had demanded more money from him, started screaming and threatened to shoot herself, put on his police handcuffs and exhibited other “mentally unstable behaviour ”, which prompted him to hit her. She had then kissed him to calm him down and offered to have sexual intercourse, which he rejected as she was menstruating.

On 12 July 2004 the Forensic Medicine Institute issued its report in relation to Ç.V., which recorded a 0.5 cm cut on her tongue, a red ecchymosis of 3 cm x 2 cm on the right side of her neck, a red lesion on her upper right chest, and pain in her left thumb. The report concluded that the injuries incurred rendered Ç.V. unfit for work for seven days.

On the same day Ç.V. submitted a written testimony to the Samsun Public Prosecutor, confessing that she had misrepresented the facts and had falsely accused the applicant in her prior statements because she had been upset with him; that she had not been kidnapped as previously alleged; and that the applicant had only hit her while they were quarrelling and had done her no other harm.

Later the same day the public prosecutor summoned Ç.V. to request an explanation in person. This time, Ç.V. claimed that she had submitted the written testimony under duress and that her initial accusations had been truthful.

On 16 September 2004 the Samsun Public Prosecutor filed a bill of indictment with the Samsun Assize Court against the applicant, charging him with attempted rape, false imprisonment and robbery.

During the criminal proceedings before the Samsun Assize Court, Ç.V. maintained her allegations against the applicant, save for the attempted sexual assault. She claimed in this connection that although the applicant had said he would rape her, had taken off his pants and had asked her to get undressed, he had never actually attempted to assault her sexually. The applicant, on the other hand, continued to deny the accusations against him. As evidence of the financial pressure he had received from Ç.V., the applicant submitted to the trial court copies of her phone bills, which she had given him for payment.

The gendarmerie commander testified before the assize court that when they had arrived at the scene of the incident, Ç.V. was crying and looked frightened; she had handcuff marks on her hand and nail scratches on her neck. The applicant was sitting next to Ç.V. in his undershirt. He added here that it was a hot day. When he asked them what was going on, the applicant tried to brush over the matter lightly, while Ç.V. pointed to her bleeding mouth and signalled a gun with her hand. Upon his demand, the applicant retrieved the gun from the trunk and handed it over to the commander. Ç.V. then told the commander that the applicant had kidnapped her and would have raped her if she were not menstruating or if the gendarmerie had not intervened.

Based on the statements from the parties and witnesses, as well as other information in the case file, the Samsun Assize Court acquitted the applicant on 21 March 2006 of the charges of false imprisonment and robbery. As for the charge of attempted rape, the assize court held that the applicant had not attempted to rape Ç.V. However, his conduct underlying that charge had in fact constituted assault and battery, on which grounds the assize court ordered his conviction.

Both the applicant and Ç.V. appealed against the judgment of the Samsun Assize Court. However, in her appeal, Ç.V. did not contest the absence of a conviction on the charge of attempted rape.

On 17 September 2012 the Court of Cassation quashed the judgment of the Assize Court on the ground that the five-year prescription period for the offence in question had expired and ordered the discontinuation of the criminal proceedings against the applicant on that basis.

2. Disciplinary proceedings against the applicant

Parallel to the criminal proceedings pending before the Samsun Assize Court, the General Security Directorate of the Ministry of the Interior initiated disciplinary proceedings against the applicant in relation to the incidents of 3 July 2004.

The Samsun Police Disciplinary Council, which was in charge of the disciplinary investigation, concluded on 16 December 2004 that it had been established that the applicant had committed the offences of false imprisonment, attempted rape and threatening violence with a weapon, and transferred the case to the Supreme Disciplinary Council of the General Security Directorate (“the Supreme Disciplinary Council”) for a decision on the applicant ’ s dismissal from the police force in accordance with the provisions of Section 8 § 6 of the Disciplinary Regulations of the Security Forces (“the Disciplinary Regulations”).

Basing itself largely on the evidence available in the criminal investigation file, on 15 February 2005 the Supreme Disciplinary Council found it established that the applicant had committed the offences of attempted rape, assault and battery, and ordered his dismissal from the police force as requested. The applicant filed an objection against this decision with the Samsun Administrative Court. He argued, inter alia , that the complainant ’ s allegations against him had been self-contradictory and that the criminal proceedings on the same charges were still pending before the Samsun Assize Court.

On 29 September 2005 the Samsun Administrative Court upheld the dismissal decision of the Supreme Disciplinary Council as lawful. The administrative court opined that Ç.V. ’ s initial statements to the gendarmerie, along with her medical report and the articles confiscated from the applicant ’ s car on the date of the incident, some of which he had attempted to hide from the gendarmerie, constituted sufficient evidence to hold that the applicant had committed the acts of attempted rape, false imprisonment and threatening with a weapon held against him, although there were no witnesses to corroborate Ç.V. ’ s allegations.

The applicant appealed against the judgment of the Samsun Administrative Court, drawing the attention of the appeal court to the fact that he had been acquitted of the criminal charges of false imprisonment, robbery and attempted rape by the Samsun Assize Court, and that his conviction for assault and battery would not in itself justify his expulsion from public service under the terms of the Disciplinary Regulations.

By its decision of 10 April 2007 the Supreme Administrative Court rejected the applicant ’ s arguments, holding that according to Section 131 of Law no. 657 on Civil Servants, an acquittal of criminal charges did not preclude the imposition of disciplinary sanctions on the same facts.

B. Relevant domestic law

Section 8 of the Disciplinary Regulation of the Security Forces, in so far as relevant, provides as follows:

“The following acts, procedures, behaviour and conduct entail 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;

... ”

COMPLAINTS

The applicant complains under Articles 6 §§ 1 and 2 of the Convention that his dismissal from the police force following unfair proceedings and despite the absence of a criminal conviction against him, violated his ri ght to the presumption of innocence .

QUESTIONS TO THE PARTIES

1. Did the applicant ’ s dismissal from the police force for reasons that also engaged his criminal liability, without, however, a criminal conviction, violate his right to presumption of innocence under Article 6 § 2 of the Convention? For what disciplinary offence was the applicant expelled from the police force? What were the constitutive elements and the standard of proof for that disciplinary offence? Considering that the acts of “false imprisonment” and “threatening with a weapon” were not amongst the grounds for dismissal listed in Section 8 § 6 of the Disciplinary Regulations of the Security Forces ( Emniyet Örgütü Disiplin Tüzüğü ) , did the disciplinary bodies have the authority to pronounce on those acts? What is the correlation between the offences listed in Section 8 § 6 of the Disciplinary Regulations and the same offences in the Criminal Code?

2. Were the disciplinary proceedings against the applicant fair within the meaning of Article 6 § 1 of the Convention? Did the disciplinary bodies conduct a separate investigation into the allegations against the applicant to establish independently the facts of the case before them, or did they rely principally on the facts and evidence established in the concurrent criminal proceedings? How did they reach the conclusion that the applicant had attempted to rape the complainant or had falsely imprisoned her while the criminal court could not establish such attempt on the basis of the same facts?

The Government are kindly requested to submit the case-files pertaining to both the disciplinary and criminal proceedings against the applicant, including the bill of indictment, and the letters of objection and appeal submitted by the applicant to the Samsun Administrative Court and the Supreme Administrative Court, respectively, and the reports delivered by the disciplinary bodies vis-à-vis the applicant .

The Government are also requested to provide sample decisions demonstrating how the relevant Section of the Disciplinary Regulations of the Security Forces ha s been applied in other contexts, as well as decisions and information on whether and how findings in a criminal procedure impact on the related disciplinary or administrative proceedings and, while not bound by a decision regarding criminal liability, whether disciplinary and administrative bodies are expected to take the findings of the criminal court into account.