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CELIK (BOZKURT) v. TURKEY - 34388/05 [2011] ECHR 643 (12 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/643.html
Cite as:
[2011] ECHR 643
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SECOND
SECTION
CASE OF ÇELİK (BOZKURT) v. TURKEY
(Application
no. 34388/05)
JUDGMENT
STRASBOURG
12 April
2011
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 Çelik
(Bozkurt) v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34388/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Nezahat Nurcan Çelik
(Bozkurt) (“the applicant”), on 16 September 2005.
The
applicant was represented by Mr Devrim Çayan Çetik, a
lawyer practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
The
applicant alleged, in particular, that her dismissal from her post as
a teacher, for an offence which she had not committed, had been in
breach of her right to the presumption of innocence.
On
27 May 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1977 and lives in Istanbul.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
15 June 2000 the applicant was charged with the offence of membership
of Hizbullah, a proscribed organisation in Turkey.
While
the criminal proceedings against the applicant were continuing before
the Diyarbakır State Security Court, Law no. 4616 entered into
force on 22 December 2000. Law no. 4616 provides for the suspension
of criminal proceedings in respect of certain offences committed
before 23 April 1999, without reaching a definitive finding as
to guilt.
On
13 March 2001 the Diyarbakır State Security Court considered
that there was no evidence to show that the applicant had been a
member of the illegal organisation or that she had carried out “any
activities on behalf of the illegal organisation in an active and
continuous manner”. According to the Diyarbakır State
Security Court, the applicant’s activities “had remained
within the scope of the offence of aiding and abetting the illegal
organisation”, which was one of the offences in respect of
which Law No. 4616 was applicable. The Diyarbakır State
Security Court thus suspended the criminal proceedings against the
applicant.
In
the meantime, on 4 October 2000, that is before the criminal
proceedings were suspended, the applicant was dismissed from her post
as a primary school teacher because the Ministry of Education
considered that the evidence in the possession of the prosecuting
authorities showed that she was a member of the illegal organisation.
The
applicant challenged her dismissal by bringing a case against the
Ministry of Education before the Diyarbakır Administrative Court
on 3 November 2000.
On
7 March 2002 the Diyarbakır Administrative Court rejected the
applicant’s request for the Ministry’s decision
dismissing her from her post to be quashed. In its decision the
Diyarbakır Administrative Court referred to the Diyarbakır
State Security Court’s above-mentioned decision of 13 March
2001, and held that the dismissal of the applicant “whose
criminal activities were deemed in the criminal proceedings to
constitute the offence of aiding and abetting” had been lawful.
The
appeal lodged by the applicant against the Administrative Court
decision was dismissed by the Supreme Administrative Court on
12 November 2004. The Supreme Court decision was notified to the
applicant on 16 March 2005.
On
various subsequent dates the applicant made job applications to the
education authorities. One of the applications she made, on 13
February 2008, was rejected by the local education authority in
Istanbul on the basis of the Diyarbakır State Security Court
decision of 13 March 2001.
According
to an official document dated 22 February 2008, the applicant has no
criminal record.
II. RELEVANT DOMESTIC LAW
Law
No. 4616, in so far as relevant, provides as follows:
“4. In respect of offences committed before 23
April 1999 which are punishable by a maximum prison sentence of ten
years:
- where no criminal investigation has been commenced or
no indictment has been filed, institution of prosecution shall be
suspended;
- where the criminal prosecution has reached the final
stages but no definitive finding on the merits has been adopted or
where a definitive finding on the merits has not yet become final,
adoption of a definitive finding on the merits shall be suspended.
If the person concerned is detained on remand, he or she
shall be released. Documents and evidence concerning such offences
shall be kept until the statute of limitations has been reached.
In cases where an offence of the same kind or an offence
which is punishable by a more severe prison sentence has been
committed before the statute of limitations has been reached, a new
prosecution shall be brought in respect of the previous offence which
was the subject matter of the suspension or the suspended proceedings
shall be resumed. If no offences of the same kind or an offence which
is punishable by a more severe prison sentence has been committed
before the statute of limitations has been reached, no public
prosecutions may be brought against those who benefited from the
suspension and the suspended proceedings shall be permanently
terminated.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention that her right
to a fair trial had been breached on account of, inter alia,
her dismissal, which was decided while the criminal proceedings
against her were still pending and which contravened the principle of
the presumption of innocence.
The
Court considers that this complaint can be examined from the
standpoint of Article 6 § 2 of the Convention, which reads as
follows:
“...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
...”
The
Government contested that argument.
A. Admissibility
The
Government argued that the applicant had failed to comply with the
requirement to exhaust domestic remedies, because she had not asked
for a rectification of the Diyarbakır Administrative Court
decision.
The
Government also submitted that the applicant had failed to respect
the six-month time-limit because she had not introduced her
application with the Court within six months of the adoption by the
Supreme Administrative Court of its decision of 12 November 2004.
The
applicant maintained that the remedy referred to by the Government
could not be regarded as effective because the grounds on which a
rectification request could be based were very specific and only
offered a prospect of success if the first-instance court’s
decision clearly contravened the applicable procedure and
legislation. The applicant also submitted that she had introduced her
application with the Court within six months of the date the Supreme
Administrative Court decision had been communicated to her.
Concerning the Government’s arguments about the
rectification procedure, the Court reiterates that it has already
examined and rejected similar objections in previous cases (see, in
particular, Dağtekin and Others v. Turkey, no.
70516/01, § 22, 13 December 2007, and Gök and Others v.
Turkey, nos. 71867/01, 71869/01, 73319/01 and 74858/01, §§
47 48, 27 July 2006). It finds no particular circumstances
in the present application which would require it to depart from that
conclusion. Consequently, it rejects this part of the Government’s
objection.
As to the Government’s second objection, the
Court reiterates that the six-month time-limit imposed by Article 35
§ 1 of the Convention requires applicants to lodge their
applications within six months of the final decision in the process
of exhaustion of domestic remedies, and that, where an applicant is
entitled to be served automatically with a written copy of the final
domestic decision, the object and purpose of Article 35 § 1 of
the Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see, inter
alia, Worm v. Austria, 29 August 1997, § 33, Reports
of Judgments and Decisions 1997 V). The Court notes that the
final decision of the Supreme Administrative Court adopted on 12
November 2004 was notified to the applicant on 16 March 2005. The
Court therefore considers that the application lodged on 16 September
2005 complied with the six-month time-limit under Article 35 § 1
of the Convention. It thus dismisses the Government’s
objection.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicant complained that her dismissal had been unfair and that the
refusal of the administrative courts to reinstate her in her post had
been in breach of her right to the presumption of innocence. She also
submitted that her repeated attempts to find employment as a teacher
were still being blocked by the authorities, who were claiming that
their refusals were based “on the offence she had committed”.
In support of this latter submission the applicant referred to the
documents summarised above (see paragraphs 14-15).
The
Government were of the opinion that the Diyarbakır
Administrative Court decision was based on the Diyarbakır State
Security Court decision of 13 March 2001, according to which it had
been conclusively established that the crime of aiding and abetting
the illegal organisation of Hizbullah had been committed. The
determination of the applicant’s guilt had been taken into
account by the Diyarbakır Administrative Court, notwithstanding
that the criminal proceedings against the applicant were suspended.
The
Government also considered that the Diyarbakır Administrative
Court had also considered a report, prepared by an inspector for
primary education on 29 August 2000, recommending the termination of
the applicant’s employment. The decision reached by the
administrative court was thus in conformity with the domestic
legislation and the case-law of the Court. The applicant’s
right to the presumption of innocence had thus not been breached.
The
Court reiterates that the presumption of innocence is infringed if a
judicial decision concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved
guilty according to law. It suffices, even in the absence of any
formal finding, that there is some reasoning suggesting that the
court regards the accused as guilty. While the principle of the
presumption of innocence enshrined in paragraph 2 of Article 6 is one
of the elements of a fair criminal trial required by paragraph 1 of
that Article, it is not merely a procedural safeguard in criminal
proceedings. Its scope is more extensive and requires that no
representative of the State or a public authority should declare a
person guilty of an offence before their guilt has been established
by a “court” (see Moullet v. France (no. 2)
(dec.), no. 27521/04, ECHR 2007 X).
The
Court has already held that while an acquittal in respect of criminal
liability ought to be maintained in subsequent compensation
proceedings, it should not preclude the establishment of civil
liability to pay compensation arising out of the same facts on the
basis of a less strict burden of proof (see, mutatis mutandis,
X v. Austria, no. 9295/81, Commission decision of 6 October
1992, Decisions and Reports (D.R.) 30, p. 227, and M.C. v. the
United Kingdom, no. 11882/85, decision of 7 October 1987,
D.R. 54, p. 162). In Turkey, as is the case in a significant number
of Contracting States, an acquittal (see Y v. Norway, no.
56568/00, § 41, ECHR 2003 II (extracts)) or suspension of
criminal proceedings does not preclude the establishment of civil
liability in relation to the same facts.
However,
if the national decision on compensation contains a statement
imputing criminal liability to the plaintiff, this could raise an
issue falling within the ambit of Article 6 § 2 of the
Convention (ibid, § 42).
The
Court considers the same considerations to be applicable to the
administrative proceedings in the present application. Thus, if a
decision of an administrative court contains a statement imputing
criminal liability to the plaintiff, this may raise an issue falling
within the ambit of Article 6 § 2 of the Convention.
Turning
to the facts of the present application, the Court observes at the
outset that the conclusion reached by the Diyarbakır State
Security Court, namely that the applicant’s activities “had
remained within the scope of the offence of aiding and abetting an
illegal organisation” does not amount to a finding of guilt,
taking into account the suspension of the criminal proceedings
without any formal decision having been taken. The Court considers
that the purpose of that qualification by the Diyarbakır State
Security Court was to assess whether, on the basis of the case file
before it, the offence for which the applicant was being tried fell
within the scope of offences to which Law no. 4616 was applicable.
Indeed, the wording of Law no. 4616 is unequivocal, in that it
requires criminal courts to suspend criminal proceedings in respect
of certain offences without reaching a definitive conclusion as to
the defendant’s guilt. The Court’s foregoing
considerations are further supported by the fact that, according to
the document submitted to the Court by the applicant, she has no
criminal record. In view of the foregoing, the Court does not share
the Government’s opinion that it had been conclusively
established that the crime of aiding and abetting the illegal
organisation of Hizbullah had been committed.
The
Court reiterates that the scope of Article 6 § 2 is not limited
to criminal proceedings which are pending, but may extend to judicial
decisions taken after the proceedings end or following an acquittal,
in so far as the issues raised in these cases are a consequence of
and concomitant to the criminal proceedings concerned, in which the
applicant was the “accused” (see Moullet, cited
above, and the cases cited therein). The Court considers that the
language used by the Administrative Court in rejecting the
applicant’s case created a “link” between the
criminal case and the administrative proceedings, which justifies the
extension of the scope of Article 6 § 2 to cover the latter
(see Y., cited above, § 47; see also, mutatis
mutandis, Moullet, cited above). It follows that Article 6
§ 2 is applicable in the present case.
Having
regard to the same wording employed by the Administrative Court and
the fact that it did not make a fresh assessment of the facts, the
Court finds that that court went beyond its task of examining the
lawfulness of the decision dismissing the applicant from her teaching
post, and in essence found
her guilty of aiding and abetting an illegal
organisation when, in fact, no such conclusion had been reached by
any criminal court.
Finally,
the Court cannot but observe that, when rejecting the applicant’s
repeated job applications the education authorities continued to rely
on the Diyarbakır State Security Court decision suspending the
criminal proceedings. The Court considers that reliance to be
incompatible with Article 6 § 2 of the Convention, which
requires that no representative of the State or a public authority
should declare a person guilty of an offence before their guilt has
been established by a “court” (see Moullet, cited
above).
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s right to the presumption of
innocence has been breached.
There
has accordingly been a violation of Article 6 § 2 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Article 7 of the Convention, the applicant complained that her
dismissal had had no legal basis. Finally, the applicant alleged
under Articles 9 and 14 of the Convention that she had been dismissed
on account of her religious beliefs and Kurdish ethnic origin.
In
the light of all the material in its possession, the Court finds that
these submissions by the applicant do not disclose any appearance of
a violation of the rights and freedoms set out in the Convention or
its Protocols. It follows that these complaints must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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 120,000 euros (EUR) in respect of pecuniary damage,
based on her loss of earnings as a result of the termination of her
contract of employment. She also claimed EUR 120,000 in respect of
non-pecuniary damage on account of her suffering stemming from her
dismissal.
The
Government considered the claims unsubstantiated and excessive, and
invited the Court not to make any award.
The
Court considers that it cannot speculate as to what the outcome of
the proceedings would have been had the Diyarbakır
Administrative Court not disregarded the applicant’s right to
the presumption of innocence. It therefore considers that no award
can be made in respect of the applicant’s claims for pecuniary
damage.
On
the other hand, the Court considers that the applicant must have
suffered a degree of distress as a result of that court’s
finding, and awards her EUR 7,200 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not make a claim for any costs and expenses.
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
Declares the complaint concerning the
applicant’s right to the presumption of innocence admissible,
and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 2 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 7,200 (seven thousand two
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Turkish liras at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 12 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
