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ALBAYRAK v. TURKEY - 38406/97 [2008] ECHR 104 (31 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/104.html
Cite as:
[2008] ECHR 104
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THIRD
SECTION
CASE OF ALBAYRAK v. TURKEY
(Application
no. 38406/97)
JUDGMENT
STRASBOURG
31
January 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Albayrak v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan
M. Zupančič, President,
Corneliu
Bîrsan,
Rıza
Türmen,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert
Myjer,
David
Thór Björgvinsson,
judges,
and
Santiago Quesada, Section Registrar,
Having
deliberated in private on 10 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38406/97) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Mr Mehmet
Emin Albayrak (“the applicant”), on 15 September
1997.
The
applicant was represented by Mr M.E. Adıyaman and Mr I. Cantepe,
lawyers practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Convention institutions.
The
application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 §
2 of Protocol No. 11).
By
a decision of 16 November 2000 the Court (Second Section) declared
the application partly admissible. It retained the applicant's
complaint concerning the alleged infringement of his right to freedom
of expression and the alleged discrimination in the enjoyment of that
right on account of his ethnic origin.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in Istanbul.
On
12 February 1993 the applicant started working as a judge in
Tufanbeyli district in Adana.
A. The disciplinary proceedings
On
14 August 1995 the General Command of the Gendarmerie submitted a
formal complaint to the judicial inspection board attached to the
Ministry of Justice concerning the applicant's behaviour. A
disciplinary investigation into the allegations was conducted by a
judicial inspector.
On
1 March 1996 the judicial inspection board notified the applicant in
writing that a disciplinary investigation had been carried out under
Section 82 of Law no. 2802 into a number of acts which he had
allegedly committed and which were considered incompatible with his
status as a judge. The letter set out the charges against the
applicant and he was requested to submit his defence in writing.
The
charges, five in all, included the accusation that the applicant had
undermined the honour and dignity of the judiciary as well as respect
for his own position as a judge (the first charge). The other four
charges related, inter alia, to reported incidents of his
conflictual behaviour towards his colleagues and to his failure to
respect the dress code of the profession and working hours.
The
judicial inspector drafted a report dated 27 March 1996,
according to which there was no evidence to justify opening an
investigation into the first set of charges. However, he stated that
evidence had been obtained that the applicant had behaved in a
conflictual way with his colleagues and that he shaved only once a
week, came late to work and did not wear a tie. This report was
submitted to the judicial inspection board of the Ministry of
Justice. The Government submitted that the judicial inspector heard
evidence from the Governor, the public prosecutor, the applicant and
his colleagues.
On
29 April 1996 the Minister of Justice approved the transfer of the
whole case file to the Supreme Council of Judges and Public
Prosecutors (“the Supreme Council”) with a view to the
consideration of possible disciplinary measures under Section 87 of
Law no. 2802.
With
regard to the first set of charges concerning the accusation that the
applicant had undermined the honour and dignity of the judiciary as
well as respect for his own position as a judge, the applicant was
accused of introducing himself at various social events as being “of
Kurdish origin” and of behaving in a manner which displayed his
sympathy for the PKK.
It was stated that the applicant had said: “If they throw me
out of the judiciary, I will go to Germany to join the organisation.”
It was further alleged that the applicant talked to Kurdish-speaking
citizens in Kurdish in order to gain their sympathy. He was also
accused of regularly reading a legal publication of the PKK, Özgür
Ülke, until it was banned and of watching Med TV a
PKK-controlled television channel, via a satellite, antenna at his
home.
In
respect of the remaining sets of charges, the applicant was accused
of quarrelling on various occasions with the public prosecutor, of
shaving only once a week, of not wearing a tie at work and of coming
to work late.
In
his written submissions to the Supreme Council, the applicant denied
the accusations against him, maintaining that they were false,
inaccurate and incomplete or had been misinterpreted. He assumed that
the evidence against him consisted of statements given by his
colleagues and other civil servants. He alleged that certain persons
were hostile to him since he had previously lodged formal complaints
against them. In this connection, he submitted that, in the past, he
had made formal complaints against the public prosecutor, Mr H.A. and
the elected major, Mr H.K. The applicant therefore maintained that
the public prosecutor, as a result of certain personal and
professional disagreements which they had had, spread false
accusations against him and had convinced other local government
officials to make further similar accusations. The applicant gave
some examples of situations where he had been in conflict with the
public prosecutor. He affirmed that he believed in all the
fundamental principles of the Turkish Republic and served the State
faithfully.
He
admitted, inter alia, that, on certain occasions and during
private conversations, he had stated that he was a Kurd, had
criticised certain unlawful acts of the State authorities and had
maintained that a distinction should be made between the innocent
population of Kurdish origin and the PKK. The applicant submitted
that he condemned terrorist acts and that it was an insult to suggest
that he sympathised with the PKK. He asserted that while none of his
family members and close friends had ever been interrogated for
terrorist offences, the public prosecutor's brothers were in custody
on allegations of aiding and abetting the PKK and his nephew had been
remanded in custody for alleged PKK membership.
The
applicant further admitted reading Özgür Ülke
which, in his opinion reported, on the events in south-east
Turkey, albeit in a biased manner. He argued that the incidents
reported in the region were a problem which the country was facing
and he, like everyone else, had the right to be informed about them.
He pointed out that he also read various other lawful publications
for the same purpose. Moreover, he argued that the fact that he read
certain lawful partisan publications did not convey his approval of
the views expressed therein. As to the allegation that he regularly
watched MedTV at home, the applicant explained that he had
never been able to watch the channel due to technical difficulties
with the reception. He argued that, even if he had watched the
channel in question, this was not unlawful. The applicant further
refuted the remainder of the accusations brought against him.
On
11 July 1996 the Supreme Council, after assessing the evidence in the
file as well as the written defence previously submitted by the
applicant, found by a majority that the evidence in the file was
sufficient to conclude that the allegations against the applicant
were well founded. In respect of the first set of accusations,
the Supreme Council concluded that the applicant should be
transferred to another jurisdiction as a sanction pursuant to Section
68 (a) and (b) of Law no. 2802. In respect of the remaining
accusations, the applicant received a reprimand. The contents and the
sources of the evidence in the file which were relied on were not
restated in the decision.
On
4 November 1996 the applicant requested the Supreme Council to
rectify its decision. In his petition, he reiterated his previous
submissions and requested that evidence be heard from his colleagues.
The applicant maintained, inter alia, that the accusations
against him were the result of lies propagated by the public
prosecutor and his friends. He affirmed that he had always maintained
his impartiality. He also submitted that as a young judge he might
have made certain mistakes due to his inexperience, but that he
should not be punished in such a harsh manner for his mistakes.
On
14 November 1996 the Supreme Council unanimously rejected the
applicant's request for a rectification of its decision.
On
17 April 1997 the Supreme Council's appeals board dismissed the
applicant's objections.
The
applicant was transferred to Şenpazar district in Kastamonu.
B. Subsequent events
Following
an enquiry by the applicant, the Supreme Council decided on 2 October
1997 that the applicant could not be promoted for a period of two
years on account of the disciplinary sanction of transfer to another
jurisdiction imposed on him pursuant to Section 30 § 4 of the
Law no. 2802.
The
applicant was subsequently appointed to Çamoluk district in
Giresun. His requests of 9 January 1998 and 29 December 1998 to be
appointed to a region carrying a higher rank were rejected by the
Supreme Council in decisions of 12 February 1998 and 14 April 1999
respectively.
On
9 December 1999 the Supreme Council dismissed the applicant's request
for a retroactive promotion. It noted that the disciplinary sanction
against the applicant had been erased pursuant to Law no. 4455 and
that it would not be an obstacle to future promotions. However, it
considered that this situation did not render null and void the
Supreme Council's decision not to promote the applicant for two
years.
Following
a fresh set of disciplinary proceedings, the applicant unwillingly
resigned from his post in 2001. The applicant now practises as a
lawyer.
II. RELEVANT DOMESTIC LAW AND PRACTICE
General information on the Supreme Council of Judges
and Prosecutors is outlined in the following decision: İmrek
v. Turkey (dec.),
no. 57175/00, 28 January 2003.
The
relevant provision of Law no. 2802 on judges and prosecutors reads as
follows:
Section 68
“Transfer to another jurisdiction shall mean the
transfer to a jurisdiction one degree lower than the one in which the
person concerned is currently working, for a minimum term of service,
if:
a) he/she undermines the honour and dignity
of the judiciary and respect for his/her own position as a judge by
his/her conduct and relations.
b) if he/she by his/her action and conduct
gives the impression that he/she cannot perform his/her duty in a
correct and an impartial manner.
...”
Law
no. 4455 grants civil servants an amnesty in relation to disciplinary
offences committed prior to 23 April 1999 and annuls any resulting
penalties or restrictions. However, it does not provide the
possibility to claim for any pecuniary loss incurred as a result of
disciplinary sanctions.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government suggested that the applicant was no longer a victim since
the consequences of the disciplinary measure imposed on him had been
the subject of an amnesty. In that respect they submitted that the
disciplinary sanction against the applicant had been erased from his
record on 22 October 1999 and that he had been promoted in August
1999. The Government invited the Court to declare the application
inadmissible or, alternatively, to strike it out of the Court's list
of cases in accordance with Article 37 of the Convention.
The
applicant disagreed with the Government's arguments and maintained
his complaints.
The
Court reiterates that “a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a 'victim' unless the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention” (see Amuur v. France, judgment
of 25 June 1996, Reports of Judgments and Decisions 1996-III,
p. 846, § 36, and Rotaru v. Romania [GC], no. 28341/95,
§ 35, ECHR 2000-V). Only when these conditions are
satisfied does the subsidiary nature of the protective mechanism of
the Convention preclude examination of an application (see, for
example, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99,
20 March 2003).
In
the instant case, the Court notes that the disciplinary sanction
against the applicant was the subject of an amnesty. The amnesty in
question did not, however, acknowledge that there had been any breach
of the applicant's rights nor did it provide the possibility for the
applicant to reclaim any alleged loss of earnings caused by the
impugned disciplinary sanction. Therefore, the Court does not
consider that the domestic authorities have recognised or redressed
the violation alleged by the applicant. He remains a “victim”
of those alleged violations.
Accordingly,
the Government's objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that the disciplinary sanction imposed on him
had infringed his right to freedom of expression since he had been
punished for reading a daily newspaper and watching a television
channel. He relied on Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime...”
A. The parties' submissions
The
Government referred to their earlier submissions and maintained that
the interference with the applicant's right to freedom of expression
was justified under the provisions of the second paragraph of Article
10. They submitted that the disciplinary sanction against the
applicant had not been based on his habit of reading publications of
the PKK or for watching MedTV. In this connection they stated
that the investigation conducted against the applicant had
established, inter alia, that the applicant had been
emphasising the differences between ethnic origins and therefore
created the impression that he was no longer impartial. In addition,
they noted that he had failed to observe the profession's regulations
as regards hours and clothing as well as maintaining good relations
with his colleagues. The Government stressed that by reading a
publication of the PKK which had been subsequently banned and by
behaving in a manner which displayed sympathy for the terrorist
organisation, the applicant had undermined the honour and dignity of
the judiciary as well as respect for his own position as a judge and
that therefore the disciplinary measure imposed on him had been
proportionate.
The
applicant maintained his allegations. He claimed, in particular, that
people were automatically accused of being separatists or terrorists
if they affirmed their Kurdish identity. He alleged that there
existed a general policy of neutralising the influence of Kurdish
civil servants by appointing them to certain regions or insignificant
posts. The applicant submitted that despite the fact that he was a
senior judge, he was appointed to lower ranking jurisdictions.
The applicant alleged that investigation were been opened against him
for no reason. He maintained that he was unable to follow the
publications he wanted to read for fear of misinterpretation.
B. The Court's assessment
The
Court notes that it is undisputed between the parties that there has
been an interference with the applicant's right to freedom of
expression on account of the disciplinary sanction imposed on him for
undermining the honour and dignity of the judiciary as well as
respect for his own position as a judge. It further considers that,
since the disciplinary measure was based on Section 68 of Law no.
2802, the interference was prescribed by law and pursued a legitimate
aim, namely maintaining the authority and impartiality of the
judiciary (see Altın v. Turkey (dec.), no. 39822/98, 6
April 2000). The Court will therefore confine its examination of the
case to the question whether the interference was “necessary in
a democratic society”.
The
Court reiterates the basic principles laid down in its judgments
concerning Article 10 (see, in particular, İbrahim Aksoy
v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §
51-53, 10 October 2000, Vogt v. Germany, judgment of 26
September 1995, Series A no. 323, pp. 25-26, §§ 52-53,
and Wille v. Liechtenstein [GC], no. 28396/95, §§ 61-62,
ECHR 1999 VII). It will examine the present case in the
light of these principles.
The
Court must look at the impugned interference in the light of the case
as a whole. It must determine whether it was “proportionate to
the legitimate aim pursued” and whether the reasons adduced by
the national authorities to justify it are “relevant and
sufficient”. In doing so, the Court has to satisfy itself that
the national authorities, basing themselves on an acceptable
assessment of the relevant facts, applied standards which were in
conformity with the principles embodied in Article 10 (see, among
many other authorities, Zana v. Turkey, judgment of 25
November 1997, Reports 1997 VII, pp. 2547 48,
§ 51).
In
the Vogt case, cited above, the Court held as follows, in
connection with the dismissal of a civil servant: “These
principles apply also to civil servants. Although it is legitimate
for a State to impose on civil servants, on account of their status,
a duty of discretion, civil servants are individuals and, as such,
qualify for the protection of Article 10 of the Convention. It
therefore falls to the Court, having regard to the circumstances of
each case, to determine whether a fair balance has been struck
between the fundamental right of the individual to freedom of
expression and the legitimate interest of a democratic State in
ensuring that its civil service properly furthers the purposes
enumerated in Article 10 § 2. In carrying out
this review, the Court will bear in mind that whenever civil
servants' right to freedom of expression is in issue the 'duties and
responsibilities' referred to in Article 10 § 2 assume a special
significance, which justifies leaving to the national authorities a
certain margin of appreciation in determining whether the impugned
interference is proportionate to the above aim.”
Given
the prominent place among State organs which is occupied by the
judiciary in a democratic society, the Court considers that this is
particularly so in the case of restrictions on the freedom of
expression of a judge in connection with the performance of his
functions, albeit the judiciary is not part of the ordinary civil
service (see Pitkevich v. Russia (dec.), no. 47936/99,
ECHR 2001).
At
the outset the Court observes that two separate disciplinary measures
were imposed on the applicant in respect of the five sets of
different charges brought against him (see paragraph 18 above). The
applicant's complaint pertains to the first set of charges. The Court
therefore does not find it relevant to assess the other set of
charges brought against the applicant for the purposes of determining
whether the disciplinary sanction imposed on him was proportionate to
the aim pursued.
The
Court notes that the applicant was transferred to a lesser
jurisdiction because the Supreme Council considered that he had
undermined the honour and dignity of the judiciary as well as respect
for his own position as a judge and by his action and conduct had
given the impression that he could not perform his duty in a correct
and an impartial manner. The Government argued that the applicant had
given the impression that he was no longer impartial by following
PKK-related media and through his comments. The applicant refuted
these allegations.
The
Court observes that neither the decisions of the domestic authorities
nor the Government's submissions before the Court give a clear and
precise indication as regards the applicant's impugned comments or
behaviour or the exact grounds on which the Supreme Council found it
established that the applicant had breached Section 68 (a) and (b) of
Law no. 2802. The only information available to the Court are
the accusations put vaguely to the applicant (see paragraph 13 above)
and the latter's submissions concerning various incidents or events
that might have triggered these accusations (see paragraphs 15-16
above).
The
Court finds no reference in the case file to any known incident which
would suggest that the applicant's impugned conduct, including that
of following PKK-related media, had a bearing on his performance as a
judge and, particularly, during any previous, pending or imminent
proceedings (see, Wille, § 69, cited above). It also
notes that no evidence was adduced by the Government to demonstrate
that the applicant had overtly associated himself with the PKK or
behaved in a way which could call into question his capacity to deal
impartially with related cases coming before him. In the Court's
view, these are the essential factors in assessing the necessity of
the measure taken by the authorities.
In
the absence of any such information, the Court cannot but assume that
the authorities attached a considerable weight to the fact that the
applicant followed or attempted to follow PKK-associated media. In
this connection the Court reiterates that freedom of expression
requires that care be taken to dissociate the personal views of a
person from received information that others wish or may be willing
to impart to him or her (see, mutatis mutandis, Halis
v. Turkey, no. 30007/96, § 34, 11 January 2005).
Having
regard to the circumstances of the case as a whole and
notwithstanding the national authorities' margin of appreciation, the
Court considers that the interference with the applicant's freedom of
expression was not based on sufficient reasons to show that the
interference complained of was “necessary in a democratic
society”. This finding makes in unnecessary for the Court to
pursue its examination in order to determine whether the disciplinary
sanction imposed on the applicant was proportionate to the aim
pursued.
It
follows that there has been a violation of Article 10 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant complained that he had been discriminated against on
account of his ethnic origin. He maintained that if a judge of
Turkish ethnic origin had watched that particular television channel
or followed that particular publication, he or she would not have
been sanctioned. The applicant relied on Article 14 of the
Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government disputed the applicant's allegations.
The
Court has examined the applicant's allegation. However, it finds that
the evidence before it does not disclose any appearance of
discrimination on the basis of the applicant's ethnic origin.
It
follows that there has been no violation of Article 14.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. Article 41 of the
Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed pecuniary damage for loss of earnings. He estimated
that his loss was around 20,000 euros (EUR) at the date of his just
satisfaction claims and that it would reach around EUR 150,000
by 2005. The applicant pointed out that, since a judge's salary
depended on various factors, he was unable to give a precise sum. He
submitted pay statements of judges at various grades in support of
his claims under this head. He further claimed EUR 500,000 in respect
of non pecuniary damage. The applicant claimed that he and his
family had suffered due to the fact that he had to work in small and
socially backward provinces and that he had lost two years'
seniority.
The
Government contested the amounts.
The
Court accepts that the applicant must have incurred some pecuniary
loss due to the fact that he was not eligible for promotion for two
years. However, the Court finds it difficult to determine a precise
amount since - as pointed out by the applicant - the salary and
promotion scales of judges are dependent upon various factors. The
Court also notes that, since 2001, the applicant is no longer a judge
but works as a lawyer.
The
Court further considers that the applicant may be taken to have
suffered a certain amount of distress given the circumstances of the
case.
Making
an assessment on an equitable basis, the Court awards the applicant
EUR 5,000 for pecuniary damage and EUR 1,000 for non pecuniary
damage.
B. Costs and expenses
The
applicant claimed EUR 15,000 in respect of costs and expenses
incurred before the Court. He did not submit any documents to support
his claim under this head.
The
Government contested the amount.
Since the applicant submitted no justification as
regards costs and expenses as required by Rule
60 of
the Rules of Court, the Court makes no award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of Article
10 of the Convention;
Holds that there has been no violation of
Article 14 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
5,000 (five thousand euros) in respect of pecuniary damages;
(ii) EUR
1,000 (one thousand euros) in respect of non-pecuniary damages;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
