SECOND SECTION

Application no. 13952/11 Ahmet URAT against Turkey lodged on 18 January 2011

STATEMENT OF FACTS

The applicant, Mr Ahmet Urat , is a Turkish national, who was born in 1962 and lives in Mardin .

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 22 January 2000 the applicant, a primary school teacher, was taken into police custody on suspicion of membership of an illegal organisation , namely the Hizbullah , following the discovery of his résumé amongst documents confiscated from this organisation ’ s headquarters in Beykoz , Istanbul.

On 28 and 29 January 2000 the applicant was interrogated by the police and the Mardin Public Prosecutor, respectively, and he denied all allegations against him at both instances. Claiming that he had never been in contact with the Hizbullah , he stressed that the résumé shown to him as evidence by the police during the interrogation differed from the one he had seen at the time of his detention a week earlier, and they both contained false information about his background.

On 29 January 2000 he was released from police custody.

On 29 February 2000 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and charged him with membership of an illegal organisation under Article 168 § 2 of the former Criminal Code, as well as with complicity in the murder of two individuals and the wounding of a third one.

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 wa s therefore transferred to the Diyarbakır Assize Court.

On 7 December 2007 the Diyarbakır Assize Court reclassified the charge against the applicant under Article 168 § 2 to one of 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 prescription period. It further ordered the applicant ’ s acquittal of the remaining charges due to lack of sufficient evidence.

2. Disciplinary proceedings against the applicant

Following the applicant ’ s detention in police custody on the suspicion of membership of the Hizbullah , the Directorate of Education in Mardin initiated a disciplinary investigation against the applicant and appointed two inspectors to report about the applicant ’ s political and ideological activities. The applicant ’ s colleagues who were interrogated within the context of this investigation stated that they had never witnessed the applicant engaging in any ideological activities at the school.

On 24 October 2000 the applicant was invited by the Supreme Disciplinary Council of the Ministry of Education (“the Supreme Disciplinary Council”) to submit his defence statement in relation to the allegations concerning his active membership of the illegal terrorist organisation Hizbullah and his alleged disruption of the peace and order at the workplace in pursuance of ideological and political aims.

It appears that on 22 November 2000 the applicant submitted his written defence statement. After examining the investigation file, on 26 March 2001 he presented further arguments in writing, where he denied having supplied the Hizbullah with his résumé and highlighted the discrepancies and faulty information in the copy found in the file to demonstrate that the document had been prepared by a third person without his knowledge.

By a decision of the Supreme Disciplinary Council dated 18 April 2001, the applicant was dismissed from the civil service pursuant to Section 125 § E (a) of the Law no. 657 on Civil Servants. The relevant parts of the decision read as follows:

“ The acts attributed to the applicant: Membership of the illegal terrorist organisation Hizbullah and carrying out activities for this organisation , disrupting the peace and order of the institution for ideological and political aims.

...

Upon examination of the file submitted to our Council by a letter of the General Directorate of Primary Education dated 16 August 2000 and numbered 9732 , and of the defence statement duly taken [from the applicant], the following has been decided :

On the basis of the examination of the information and documents in the file, the veracity of the acts attributed to the applicant and their continuous nature has been established. Upon review of the [applicant ’ s] service record, and in view of the aims and principles of the Law on National Education, the importance and character of the profession of teaching and the characteristic and the gravity of the offence [emphasis added], it has not been deemed appropriate to impose a lighter sanction... For this reason, [it has been decided] to accept the proposal for [the applicant ’ s] dismissal from civil service in accordance with Section 125 § E (a) of the Law no. 657 ...”

On 20 June 2001 the applicant applied to the Diyarbakır Regional Administrative Court for a stay of execution and the eventual annulment of the dismissal decision. He complained, inter alia , that the criminal proceedings on the charge of membership of an illegal organisation were still pending before the Diyarbakır State Security Court and that, therefore, his dismissal without a conviction on the basis of abstract accusations infringed the presumption of innocence; that the allegations that he had disturbed the peace and order at the workplace remained completely unproven and unsubstantiated; and that in rendering its decision, the Supreme Disciplinary Council had failed to comply with the six-month time-limit set out in Law no. 657.

On 4 March 2002 the Diyarbakır Regional Administrative Court ordered the stay of execution of the dismissal decision. It reiterated at the outset the three principal conditions for an act to be considered a disciplinary offence: (1) that the act be carried out by the employees of an institution within that institution; (2) that the act disrupt the established order of the institution; and (3) that the act constituting the disciplinary offence, as well as the related penalty, be set out in the relevant laws and regulations. The administrative court then went on to examine the different types of offences that may be committed by civil servants, differentiating between acts amounting to disciplinary offences exclusively, acts considered as offences under both disciplinary and criminal laws, and lastly, acts defined as offences only under the Criminal Code. In the light of this classification, the Diyarbakır Regional Administrative Court decided that the act attributed to the applicant, that is, membership of a terrorist organisation , fell under the third category of acts punishable only under the Criminal Code, the determination of which could only be made by a competent criminal court. Bearing in mind that the relevant criminal proceedings were still pending before the Diyarbakır State Security Court, the administrative court concluded that the applicant could not, for the time being, be lawfully dismissed from the civil service on account of membership of a terrorist organisation .

On 8 September 2006 the Diyarbakır Administrative Court annulled the Supreme Disciplinary Council ’ s dismissal decision for being unlawful. Noting the discrepancy in the latter ’ s decision, the administrative court stated that while the applicant was being accused by the administration of membership of a terrorist organisation , the legal basis put forward for his dismissal was the disruption of peace and order at the workplace through ideological and political propaganda under Section 125 § E (a) of the Law no. 657 . Considering that none of the persons interrogated at the school had witnessed such propaganda by the applicant at the school , and bearing further in mind that “membership of a terrorist organisation ” was not one of the exhaustive grounds for dismissal from civil service as listed in the relevant Section, the applicant ’ s dismissal had no legal basis.

On 20 June 2008 the Supreme Administrative Court overturned the judgment of the Diyarbakır Administrative Court and modified the legal ground for the applicant ’ s dismissal. The Supreme Administrative Court firstly acknowledged that the charges against the applicant on aiding and abetting an illegal organisation had been discontinued on account of the expir y of the five-year pre scription period set out for this offence, and that he had been acquitted of the remaining charges. Referring to the applicant ’ s statements at the Mardin Security Directorate, to his résumé obtained at the Hizbullah headquarters in Istanbul and the bill of indictment filed against him by the Mardin Public Prosecutor, the Supreme Administrative Court then found it established that the applicant was a member of a terrorist organisation , who moreover recruited members to this organisation and pursued the ideology of the terrorist organisation in the classroom. It continued that even if his colleagues had not witnessed such action on the part of the applicant at the school, his dismissal was still justified under a different subsection of Section 125 § E, namely subsection (g), which authorised dismissal of civil servants who were found to engage in “ disgraceful and shameful conduct incompatible with the position of a civil servant”.

On 27 May 2009 the Diyarbakır Administrative Court transferred the case to the Mardin Administrative Court, which was deemed to be the court of competent jurisdiction in the instant case.

24 November 2009, complying with the decision of the Supreme Administrative Court, the Mardin Administrative Court upheld the disciplinary decision ordering the applicant ’ s dismissal from the civil service under Section 125 § E (g) of the Law no. 657.

On 17 September 2010 the Supreme Administrative Court rejected the applicant ’ s appeal request.

B. Relevant domestic law

Section 125 § E 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:

(a) Disrupting the peace, tranquility and the working order of the institution for ideological and political aims; participating in such acts as boycotts, occupations, obstructions, slowdowns and strikes or being collectively absent from work for these purposes; provoking and encouraging or assisting such acts;

...

(g) Engaging in disgraceful and shameful conduct incompatible with the position of a civil servant;

...”

COMPLAINTS

The applicant complains under Article 6 § 2 of the Convention that his dismissal from the civil service despite the absence of a criminal conviction against him violated his ri ght to the presumption of innocence . He further asserts under Article 6 § 1 of the Convention that the administrative courts acted ultra vires in ordering his dismissal in that they had no legal authority to decide what constituted membership of a terrorist organisation ; that they applied the relevant domestic laws erroneously as membership of a terrorist organisation was not amongst the grounds of dismissal listed exhaustively in Law no. 657; and that they turned a blind eye to the Supreme Disciplinary Council ’ s disregard of the relevant statutory time-limits. He also maintains that the administrative courts did not provide sufficient reasoning in their decisions and failed to respond to his arguments and objections regarding the alleged infringement of the presumption of innocence. He further claims under Article 6 § 1 that the administrative courts lacked independence and impartiality and that his right to defend himself was also violated.

The applicant complains under Article 1 of Protocol No. 1 to the Convention of the loss of the earnings he was deprived of as a result of his unlawful dismissal from the civil service.

Lastly, the applicant invokes Articles 5, 7, 13 and 14 of the Convention without substantiating these complaints.

QUESTION S TO THE PARTIES

Was the applicant ’ s presumption of innoc ence as guaranteed by Article 6 § 2 of the Convention respected in the instant case? In particular, did the disciplinary proceedings , which found the applicant ’ s membership of an illegal organisation to be undoubtedly established while proceedings on the same subject matter were still pending before a criminal court, impute criminal liability on the applicant, considering in particular that “membership of an illegal organisation ” is a criminal offence and not a disciplinary one under the Law no. 657 on Civil Servants ? Did the Supreme Disciplinary Council of the Ministry of Education , and subsequently the administrative courts, have the competence to pronounce on the applicant ’ s membership of an illegal organisation prior to a criminal court ruling, considering the inherently criminal nature of the alleged act?

The Government are kindly 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 .