SECOND SECTION

DECISION

Application no. 56782/17 Memduh TOPRAK against Türkiye

The European Court of Human Rights (Second Section), sitting on 6 June 2023 as a Committee composed of:

Egidijus Kūris , President , Pauliine Koskelo, Frédéric Krenc , judges ,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 56782/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 June 2017 by a Turkish national, Mr Memduh Toprak, who was born in 1963 and lives in Aydın (“the applicant”);

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the transfer of the applicant, a trade union representative, to a different workplace.

2. The applicant was an engineer at the Aydın Directorate of Agriculture and he was also the representative of the Trade Union of Public Employees of Turkey in the Service Branches of Agriculture, Forestry and Food (“the Union”) in his workplace. On 4 April 2014 he was transferred to the Efeler Directorate of Agriculture in the province of Aydın.

3. The applicant applied to the Administrative Court seeking annulation of his transfer on the ground that he was the workplace representative of the Union. He submitted that pursuant to section 18 of the Law on Collective Agreements of Civil Servants (Law no. 4688), the administration did not have the right to transfer representatives of unions to a different workplace without a specific and explicit reason.

4. The Administrative Court rejected his request on the grounds that a new district, Efeler, had been created by the Government in Aydın and that the directorates of this new district had needed new personnel. It noted that in order to meet this need, having taken into consideration the qualifications of the applicant, the administration had transferred the applicant to the new Efeler Directorate of Agriculture. It noted that the transfer at stake had complied with the needs of the public service and public interest. Additionally, section 18 of the Law on Collective Agreements of Civil Servants (Law no. 4688) did not preclude changing the workplace of a union’s workplace representative. If the reason for the change was indicated clearly and precisely, such a change was possible.

5. The applicant filed an appeal against this judgment which was dismissed by the Regional Administrative Court.

6. On 20 February 2017 the Turkish Constitutional Court (TCC) declared the applicant’s individual application inadmissible. Having assessed the application in the light of the right to freedom of association, it found that the reason of the applicant’s transfer to another workplace was the needs of the public service and that he could continue to exercise the functions vested in him by his Union in his new workplace. Besides, there was no decrease in his financial and statutory rights. Having regard to the margin of appreciation that the administration had on the matter, there was no interference with the applicant’s right to freedom of association.

7. On 24 February 2021 the applicant was transferred back to the Aydın Directorate of Agriculture.

8. Without invoking any specific article of the Convention, the applicant complains of a breach of his right to freedom of association and of the unfairness of the proceedings. He maintains that the decision to transfer him was not taken in accordance with section 18 of Law no. 4688, which defines the conditions for the transfer of trade union officials.

THE COURT’S ASSESSMENT

9. The applicant complained that his position as a union’s representative in the workplace was not considered in his transfer from the Aydın Directorate of Agriculture to the newly established Efeler Directorate of Agriculture. He also complains of the dismissal of his actions for annulment of the transfer by the domestic court. The Court considers it appropriate to assess the application under Article 11 of the Convention alone.

10. The Government argued that the present case concerned only a legitimate transfer of the applicant to a different workplace. They noted that the applicant did not raise any claims related to his right to freedom of association such as that he had been prevented from becoming a member or representative of a trade union or that he was transferred to a different workplace because he was a member of a trade union.

11. The Court recalls that Article 11 § 1 of the Convention presents trade union freedom as a particular form or aspect of freedom of association; it does not guarantee trade union members specific treatment by the State and in particular does not guarantee a right of its members not to be transferred (see Metin Turan v. Turkey , no. 20868/02, § 27, 14 November 2006; Akat v. Turkey , no. 45050/98, § 38, 20 September 2005, and National Union of Belgian Police v. Belgium , 27 October 1975, § 38, Series A no. 19).

12. The Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action, the conduct and development of which the Contracting States must both permit and make possible (see Tüm Haber Sen and Çınar v. Turkey , no. 28602/95, § 28, ECHR 2006 ‑ II).

13. In the present case, the Court observes that the applicant was transferred to another workplace even though he was the representative of his trade union in his workplace. The Court notes that the applicant never claimed that his transfer was ordered because of his trade union activities. He only stated that the transfer did not comply with section 18 of Law no. 4688, which defines the conditions for the transfer of trade union officials. According to the said provision “...a public employer may not change the workplace of the workplace’s union representative (...) without clearly and precisely specifying the reason.”

14. Examining the proceedings relating to the above-mentioned transfer of the applicant, the Court notes that the applicant had been transferred to a newly established workplace. It is understood that he did not raise any allegation that he had been subjected to pressure at his workplace on account of his membership of a trade union or his function of trade union representative or that he had been appointed to the Efeler Directorate of Agriculture for that reason. Furthermore, there is no indication that the applicant could not carry out his trade union activities at his new workplace. Besides, the domestic courts took account of the applicant’s claims regarding Law no. 4688 in their examination and concluded that the law had been complied with. They found that the applicant would be able to continue his union-related activities at his new workplace. Moreover, there was no reduction of any of his financial rights and employment-related benefits. The applicant’s transfer had been within the margin of appreciation of the administration, which had decided to transfer the applicant because of the staffing requirements of the newly established Efeler Directorate of Agriculture. His transfer had therefore been in the public interest and complied with the needs of the public service.

15. The Court notes that there were no factors which would allow it to find that the conclusion of the national authorities were arbitrary or were delivered as a result of proceedings which were not suitable for making a proper evaluation of the application of the relevant provision of Law no. 4688 which was relied on by the applicant. The applicant has never maintained before the national courts that he had been transferred because of his membership of a trade union, his elective office within that trade union or his trade union activity. Moreover, there is nothing in the file to suggest that the national courts acted arbitrarily in assessing the evidence (compare also Ersöz and Others v. Turkey (dec.), no. 12570/02, 1 April 2008).

16. The Court also notes that the status of the applicant provides, in principle, for the possibility of transfer to another service or to another city according to the needs of the public service. In this respect, the transfer decision in question does not constitute a limitation or impediment to his right to join a trade union or to exercise or enjoy freedom of association (see also Akat , cited above, §§ 41 and 43).

17. In view of the foregoing and in the light of all the circumstances of the present case, the Court finds that the applicant has not demonstrated that the transfer decision taken against him constituted an interference with his right to engage in trade union activities (see, mutatis mutandis , Ersöz and Others , cited above; Bulğa and Others , no. 43974/98, §§ 73 and 75, 20 September 2005; Akat , cited above, §§ 42 and 44; and, conversely, Metin Turan , cited above, §§ 30-32).

18. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 June 2023.

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Dorothee von Arnim Egidijus KÅ«ris Deputy Registrar President