CASE OF ÖZDEMİR GÜRCAN v. TURKEY
(Application no. 2722/10)
24 October 2017
This judgment is final but it may be subject to editorial revision.
In the case of Özdemir Gürcan v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jon Fridrik Kjĝlbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 3 October 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 2722/10) 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 Dudu Gamze Özdemir Gürcan (the applicant), on 30 December 2009.
2. The applicant was represented by Mr M. Erdoğdu, a lawyer practising in Mersin. The Turkish Government (the Government) were represented by their Agent.
3. On 26 April 2010 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1973 and lives in Mersin.
5. The applicant is a teacher in primary school and at the material time she was a member and secretary of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası).
6. On 28 November 2008 the applicant participated in a demonstration organised by the above mentioned trade union on the theme No to violence against women.
7. On 29 June 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on the applicant for her participation in the aforementioned demonstration under Article 125 of the Law no. 657 on Civil Servants.
8. On 10 July 2009 the applicant objected to this decision and requested its annulment.
9. On 29 July 2009 the Disciplinary Board of the Yenişehir district governor dismissed the applicants objection considering that the contested decision was in accordance with law and there were no grounds for its annulment.
II. RELEVANT DOMESTIC LAW
10. A full description of relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-17, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-21, 24 March 2015).
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
11. The applicant complained that the disciplinary sanction of reprimand imposed on her for her participation in trade union activities had infringed her rights under the Convention. In this regard, she relied on 11 of the Convention, which reads as follows:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
12. The Government contested that argument.
13. The Court notes that in the case of Karaçay v. Turkey (no. 6615/03, 27 March 2007), which raised issues similar to those in the present case, it observed that the sanction complained of, although very light, had been such as to dissuade trade union members from legitimate participation in strikes or other trade union actions to defend the interests of their members. Accordingly it found that the warning given to the applicant had not been necessary in a democratic society and there had been a breach of applicants right to freedom to demonstrate (ibid § 37; see mutadis mutandis Kaya and Seyhan v. Turkey, no. 30946/04, § 30, 15 September 2009; Şişman and Others v. Turkey, no. 1305/05, § 34, 27 September 2011; and İsmail Sezer v. Turkey, no. 36807/07, § 55, 24 March 2015).
14. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
15. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
16. The applicant complained that no remedy had been available to her under the domestic law in force at relevant time, by which to challenge the disciplinary sanction imposed on her. She relied on Article 13 of the Convention, which reads:
Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity..
17. The Government contested that argument.
18. The Court observes that the legislation in force at the relevant time precluded any application to the administrative courts for the purpose of challenging the lawfulness of the disciplinary sanctions of warning and reprimand imposed pursuant to Section 125 of the Law no. 657.
19. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of lack of an effective remedy under Turkish law, whereby the applicants could have challenged the disciplinary sanctions of warning and reprimand imposed on them (Karaçay, cited above, § 44; Kaya and Seyhan, cited above, § 41; and İsmail Sezer, cited above, § 66). It finds no reason to depart from that conclusion in the present case.
20. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 11 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
Done in English, and notified in writing on 24 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President