SECOND SECTION

Application no. 15374/11 Yaşar GÜÇ against Turkey lodged on 21 December 2010

STATEMENT OF FACTS

The applicant, Mr Yaşar Güç , is a Turkish national, who was born in 1960 and lives in Giresun . He is represented before the Court by Mr T. Yan ı koğlu , a lawyer practising in Giresun .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 8 February 2006 the applicant, a janitor employed at the Public Education Centre ( Halk E ğ itim Merkezi ) in Giresun , was taken into police custody on the suspicion of child molestation, after being caught in an allegedly indecent position with Ş.Ç.Ö., a 9-year-old attending the primary school located in the same building as the Public Education Centre.

On 8 March 2006 the Espiye Public Prosecutor filed a bill of indictment with the Espiye Criminal Court of First Instance, charging the applicant with the sexual abuse, sexual assault and unlawful detention of a minor, pursuant to Articles 103 § 1(a), 109 § 3(f)(5) and 102 §§ 1 and 3(a) of the Turkish Criminal Code.

During the ensuing criminal proceedings, the Espiye Criminal Court of First Instance heard statements from the applicant, the parents of Ş.Ç.Ö. , the psychiatrist who interviewed the little girl after the incident , and the teachers and personnel at the Public Education Centre and the neighbouring primary school, including the teacher E.U., who was the sole eyewitness to the incident. Denying the allegations against him, the applicant stated that on the relevant morning, he had entered one of the classrooms in the building for cleaning purposes, where the alleged victim, Ş.Ç.Ö. , was already present with another pupil. While he was busy cleaning, Ş.Ç.Ö. had asked for a simit (a type of bread roll) and had attempted to hug him, as a result of which gesture he had lost his balance and fallen on a desk with Ş.Ç.Ö. It was at that point that the teacher E.U. had entered the classroom.

E.U., on the other hand, testified before the trial court that as she opened the door of the classroom in question, she saw the applicant sitting on a desk in the dark with his legs apart, hugging Ş.Ç.Ö. who was sitting on his lap, faced towards the blackboard. Within a matter of seconds upon seeing her, the applicant threw Ş.Ç.Ö. away in panic. E.U. stated that while she had never witnessed similar behaviour by the applicant before, the scene she saw on the relevant day looked suspect. She also confirmed that there was another pupil in the classroom at the time.

S.P., who worked in the same primary school and was also the uncle of Ş.Ç.Ö. ’ s mother, asserted before the court that although he had never witnessed any suspicious behaviour on the part of the applicant, he had heard a colleague, İ.K., say that the applicant had engaged in indecent behaviour towards some pupils at the school he had worked in previously. On the other hand, İ.K ., who was the deputy principal at the applicant ’ s previous school, denied giving S.P. any such information concerning the applicant or hearing any adverse rumours or complaints about him for that matter.

Ş.Ç.Ö. ’ s father alleged that according to the information he had received from M.Ö. and M.K., both employees at the Public Education Centre, the applicant had been dismissed from his previous job for similar behaviour . While M.Ö. denied this allegation, M.K. confirmed that S.P., mentioned above, had given him this information, but that he himself had never witnessed any indecent behaviour by the applicant.

Another witness, B.A., confirmed that the applicant had apologised to him following the incident. There is no information in the case-file as to the position of B.A. or the exact content of this apology.

The psychiatrist who interviewed Ş.Ç.Ö. after the incident reported that the latter lacked the mental capacity to comprehend and recount what might have taken place on the relevant day and, for that reason, it would be futile, and possibly harmful for her well-being, for the trial court to hear her.

On the basis of all the evidence before it, on 18 December 2008 the Espiye Criminal Court of First Instance ordered the applicant ’ s acquittal, holding that it was not possible to establish, beyond all doubt, that he had committed the sexual acts forming the basis of the charge. The court underlined that the statements of the sole eyewitness were self-contradictory in parts and that they included her personal interpretations of what actually took place on the relevant morning. It added that despite E.U. ’ s allegation that the applicant had thrown Ş.Ç.Ö. away upon her entry, no wounds or bruises had been detected on the little girl ’ s body.

On 13 January 2009 the acquittal judgment was finalised in the absence of any appeals.

2. Disciplinary proceedings against the applicant

Parallel to the criminal proceedings pending before the Espiye Criminal Court of First Instance, a disciplinary investigation was conducted against the applicant in relation to the allegations of sexual harassment.

The report which was issued at the end of the disciplinary investigation on 3 April 2006, which is not available in the case-file, found the allegations of sexual harassment against the applicant to be well-founded. There is no information in the file as to whether the disciplinary authorities conducted their own investigation into the incident from a disciplinary stand-point or whether they relied on evidence collected during the criminal proceedings.

On 25 May 2006 the applicant submitted his written defence to the Supreme Disciplinary Council of the Ministry of Education (“the Supreme Disciplinary Council”) . He requested at the outset that the investigation be postponed until the finalisation of the criminal proceedings against him on the same allegations. Furthermore, denying all accusations, he challenged E.U. ’ s statements as being wholly subjective and distorting the facts, bearing particularly in mind that the whole incident had taken place within a matter of seconds as she too had acknowledged, which did not realistically allow her to make the detailed observations that she had recounted to the authorities. He added that it was against logic that he would commit the alleged act in the presence of another pupil in the classroom and right before the start of the classes.

On 5 July 2006 the Supreme Disciplinary Council issued the following decision in relation to the applicant, in so far as relevant:

“Upon examination of the file submitted to our Council by a letter of the General Directorate of Personnel dated 24 April 2006 and numbered 36043, and of the defence statement duly taken [from the applicant], the following has been decided:

On the basis of the information and documents in the file, the veracity of the act [sexual harassment of Ş.Ç.Ö.] attributed to the applicant has been conclusively established... For this reason, it has been decided unanimously to accept the proposal to dismiss the applicant from the civil service in accordance with Section 125 § E( g) of the Law no. 657 [on Civil Servants], ...”

On 30 October 2006 the applicant objected to the Supreme Disciplinary Council ’ s decision before the Ordu Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed the act of sexual harassment of a minor, which is a criminal act, while criminal proceedings were still pending into the same allegation, violated his right to the presumption of innocence.

On 3 July 2007 the Ordu Administrative Court rejected the applicant ’ s objection. Referring to Section 131 of Law no. 657, it held at the outset that the conviction or acquittal of a civil servant pursuant to the terms of the Criminal Code did not preclude the imposition of disciplinary sanctions in relation to the same facts . It then reviewed the evidence in the case-file, which led it to conclude that the applicant had committed the act imputed to him. It paid specific attention to the position the applicant had been found in in the classroom , as well as the fact that the classroom ’ s door had been shut and the lights had been turned off. It also highlighted the statement by the principal of the neighbouring primary school, A.T., during the criminal proceedings, acknowledging that the applicant had apologised to him after the incident and that he had also heard rumours about the applicant ’ s similar indecent behaviour in other schools that he had worked at. This statement by A.T. is not available in the judgment of the Espiye Criminal Court of First Instance.

The applicant appealed against the decision of the Ordu Administrative Court, which he deemed was based on groundless accusations. He argued firstly that, in circumstances where the act forming the basis of the criminal and disciplinary investigations was the same, the criminal proceedings would be better placed to shed light on the circumstances and to arrive at an accurate conclusion on the facts, compared to the disciplinary bodies, whose findings would be at best hypothetical . He then drew attention to the fact that the presence of another pupil in the classroom at the time of the incident, as well as his explanation that the door had been shut because of the current from the open window, had been ignored by the administrative court. The administrative court had similarly overlooked his service records ( sicil dosyası ) and the fact that they made no mention of any allegations of misconduct in his previous post, which would be unimaginable if he had really been dismissed from that post for indecent behaviour . He also referred in this connection to the statements of İ.K., the deputy principal at the previous school, denying any such allegations of indecent behaviour .

On 17 November 2009 the Supreme Administrative Court dismissed the applicant ’ s appeal, without referring to the acquittal judgment which had been rendered by the Espiye Criminal Court of First Instance in the meantime.

On 7 July 2010 the Supreme Administrative Court rejected the applicant ’ s rectification request.

B. Relevant domestic law

Section 125 § E( g) of the Law on Civil Servants (Law no. 657) , in so far as relevant, provides as follows:

“E. ...The following acts and conduct entail expulsion from the civil service:

...

(g) Engaging in disgraceful and shameful conduct that is not compatible with the position of a civil servant;

...”

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that his dismissal from the civil service on disciplinary grounds, despite his acquittal of the criminal charges against him on identical facts, violated the presumption of innocence .

QUESTIONS TO THE PARTIES

Was the presumption of innocence as guaranteed by Article 6 § 2 of the Convention respected by the disciplinary bodies in the instant case, bearing in mind that the applicant was found to have “sexually harassed” a child, which is also an offence under the Criminal Code? Was the Supreme Administrative Court under an obligation to explain why the applicant ’ s dismissal was being upheld despite his acquittal of the criminal charges against him?

The Government are requested to submit the complete disciplinary investigation file, together with the disciplinary investigation report, to the Court. They are also invited to provide an explanation as to the domestic law and practice on the interrelationship between disciplinary and criminal proceedings in circumstances where the subject matter is identical under both, including the different standards of proof employed by these respective jurisdictions.