European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF DURMUŞ v. TURKEY

 

(Application no. 5159/10)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

24 October 2017

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Durmuş v. Turkey,

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

          Julia Laffranque, President,
          Jon Fridrik Kjølbro,
          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:

PROCEDURE

1.  The case originated in an application (no. 5159/10) 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, Mr Hıdır Turgut Durmuş (“the applicant”), on 12 January 2010.

2.  The applicant was represented by Mr N. Gürgöz, a lawyer practising in Antalya. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 26 April 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1958 and lives in Antalya.

5.  The applicant is a teacher in a high school. At the material time he was a member of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası).

6.  In May 2009, disciplinary proceedings were instituted against the applicant for putting up a notice encouraging the participation in a press statement published by his Union on the notice board that was set aside for that particular purpose in their office, and for distributing it in one of the common areas at school.

7.  On 30 September 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on him, for putting up and distributing notices produced by the trade union, of which he was a member, under Article 125 of the Law no. 657 on Civil Servants.

8.  On 6 October 2009 the applicant objected to this decision and requested its annulment.

9.  On 15 October 2009 the Disciplinary Board of the Kepez district governor dismissed the applicant’s 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).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

11.  The applicant complained that the disciplinary sanction of reprimand imposed on him for his participation in trade union activities had infringed his rights under the Convention. In this regard, he relied on Articles 9, 10 and 11 of the Convention.

12.  The Court considers that the applicant’s complaints fall to be examined under Article 11 of the Convention alone. Article 11 of the Convention 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.”

13.  The Government contested that argument.

A.  Admissibility

14.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

15.  The applicant alleged that the disciplinary sanction imposed on him had amounted to disproportionate interference with his right to freedom of association.

16.  The Government contested that argument and alleged that a disciplinary sanction was imposed on the applicant due to his behaviour that was considered as unsuitable to his duties and responsibilities as a teacher.

17.  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 applicant’s 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).

18.  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.

19.  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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

A.  Damage

20.  The applicant claimed 2,000 euros (EUR) in respect of non-pecuniary damage.

21.  The Government contested the claim.

22.  In the circumstances of the present case, the Court considers that the finding of a violation of Article 11 of the Convention, constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Karaçay, cited above, § 49).

B.  Costs and expenses

23.  The applicant did not submit any claim for costs and expenses.

24.  Accordingly, the Court considers that there is no call to award him 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 the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

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