European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/117.html
Cite as: [2010] ECHR 117
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
36607/06
by Abdullah YILMAZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 January 2010 as a Chamber composed of:
Françoise Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having regard to the above application lodged on 3 August 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Abdullah Yılmaz, is a Turkish national who was born in 1965 and lives in Eskişehir. He is represented before the Court by Mr V. Ata, a lawyer practising in Eskişehir.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a civil servant working as a teacher of religious studies in a State school.
In 2000, he passed several examinations organised by the Ministry of Education (“the Ministry”) to be appointed to a temporary post abroad. The authorities however refused to appoint the applicant to this position.
On 1 November 2000 he requested an explanation from the Ministry as to the reasons for the rejection of his application.
On 17 November 2000 the Ministry informed the applicant that he did not fulfil the requirements set forth in Section A of Regulation no. 2000/11 on the admissibility criteria for candidates to be appointed to positions abroad.
On 5 January 2001 the applicant brought proceedings against the Ministry before the Eskişehir Administrative Court and requested a stay of execution and annulment of the administrative decision. He indicated that Section B of Regulation no. 2000/11 stated that teachers who do not fulfil the criteria set forth in Section A will not be accepted to sit the examinations. He claimed that the Ministry’s decision was arbitrary and unlawful as he had clearly been assumed to have fulfilled every criteria before sitting the examinations.
In its response to the applicant’s claims, the Ministry stated as follows:
“Based on the Directive on Security Investigations, the administration has the right to conduct necessary investigations regarding personnel to be appointed abroad. If the result of this investigation is negative, the Ministry of Education then forms an Evaluation Board. In the applicant’s case the above-mentioned Board determined that the applicant was not eligible for the duty abroad. On 30 August 2000 the General Directorate of Education approved this decision.”
The Ministry also submitted several documents to the Eskişehir Administrative Court, including decisions of the Board of Evaluation and a report labelled ‘secret’ regarding the applicant’s personal and family life. The report indicated the following:
“...
– the applicant was arrested and released in 1987 in Kayseri for involvement in events where an Ataturk statue was damaged;
– he hosts his male and female guests in separate rooms;
– his wife, A.Y., follows the Islamic dress code in her daily life and wears a wig at the school where she works.
This report cannot be used as legal evidence. If it needs to be used in such a way, the information in the report must first be proven by the relevant institutions.”
This report was communicated to the applicant, who submitted his counter arguments.
On 27 February 2001 the Eskişehir Administrative Court rejected the applicant’s request for a stay of execution of the administrative decision.
On 13 September 2001 the court dismissed the case. The judgment read as follows:
“According to Section A of Regulation no. 2000/11 on the admissibility criteria for candidates to be appointed to positions abroad, applicants should not have a condition that would hamper the duty. The Regulation states that the existence of such a condition would be determined by the Ministry’s Evaluation Board. Moreover, the relevant articles of the Directive on Security Investigations foresee that the personnel who apply for positions abroad would be subject to an investigation and that an Evaluation Board would be formed if that investigation bears negative results. Based on the case file, it is observed that the applicant succeeded in the examinations for the position. However, the Evaluation Board decided that he was not eligible for the duty. The Court holds that, due to the specific conditions of such duty, the impugned administrative decision was issued within the margin of appreciation of the administration for the protection of the public interest. The Court therefore decides to dismiss the case.”
On 5 November 2001 the applicant appealed against the judgment, stating that the administrative decision had been issued on the basis of the security investigation report. He argued that the decision was unlawful and violated his right to respect for his private life. He further requested a stay of execution of the decision.
On 23 January 2002 the Supreme Administrative Court rejected the applicant’s request for the stay.
During the proceedings before the Supreme Administrative Court, the written opinion of the Public Prosecutor concerning the applicant’s appeal request was not communicated to the applicant.
On 13 May 2005 the Supreme Administrative Court upheld the judgment of the Eskişehir Administrative Court.
On 19 December 2005 the Supreme Administrative Court rejected the applicant’s request for rectification. The applicant received a copy of this final decision on 7 February 2006.
B. Relevant practice
The applicant submitted to the Court two separate decisions of the Supreme Administrative Court concerning cases where candidates for similar teaching positions abroad were refused appointment on the basis of information gathered through security investigations:
– In its decision dated 8 December 2004, the Supreme Administrative Court accepted the plaintiff Y.Ş.’s request for rectification of the judgment of the Ankara Administrative Court. The case concerned an administrative decision which rejected Y.Ş.’s appointment to a teaching position abroad on the basis of a security investigation report. After evaluating Articles 8 and 15 of the Directive on Security Investigations and the admissibility criteria for the candidates to be appointed to positions abroad, the Supreme Administrative Court stated the following:
“... the information on which the administrative decision was based is intelligence oriented and cannot be used as legal evidence. Although the administration has a margin of appreciation in choosing the eligible persons for certain duties, the administrative decision at issue cannot be deemed lawful as it is solely based on a security investigation about the plaintiff who had already succeeded in the examinations for the duty.”
– In its decision dated 18 February 2005 the Supreme Administrative Court rejected the Ministry of Education’s request for rectification of the judgment of the Ankara Administrative Court. The case concerned İ.K. who was refused appointment to a teaching position in Riyadh, due to a security investigation stating that he was extremely religious. The first-instance court had decided that the administration could not base its decisions on abstract allegations and that the intelligence reports could not be used as legal evidence unless supported by objective documents and information.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about various aspects of the administrative proceedings. He maintained;
– that the administrative proceedings had not been concluded within a reasonable time;
– that he had not had a fair hearing in so far as the domestic courts had adopted conflicting decisions in identical cases brought by other teaching candidates against whom similar intelligence reports had been issued;
– that the Administrative Court had lacked independence and impartiality;
– that the domestic courts had violated his right to adversarial proceedings, in that neither the security investigation report nor the written opinions of the public prosecutor concerning his appeal request had been communicated to him.
Invoking Article 8 of the Convention, the applicant submitted that his right to respect for his private and family life had been breached by the security investigation report and the administrative decision made on the basis of that report.
The applicant complained under Article 14 in conjunction with Articles 6 and 8 of the Convention that he had been subjected to discrimination vis-à-vis other teachers who had applied to be appointed to similar positions.
Finally, relying on Article 1 of Protocol No. 1 to the Convention, the applicant argued that he had been deprived of the salary which he would have earned if he had been appointed to the position.
THE LAW
He maintained under the same Article that the public prosecutor’s written opinion concerning his request for leave to appeal was not communicated to him and that the Supreme Administrative Court adopted conflicting decisions in identical cases.
He further submitted under Article 8 of the Convention that the security investigation report against him violated his right to respect for his private and family life.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of proceedings, the non-communication of the Public Prosecutor’s opinion, the conflicting case-law of the Supreme Administrative Court and the applicant’s right to respect for his private life;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens
Registrar President