European Court of Human Rights

 

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

 

CASE OF BEKTAŞOĞLU v. TURKEY

 

(Application no. 27810/09)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

16 January 2018

 

 

 

 

 

 

 

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




In the case of Bektaşoğlu v. Turkey,

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

          Ledi Bianku, President,
          Valeriu Griţco,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 19 December 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 27810/09) 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 Özgür Bektaşoğlu (“the applicant”), on 2 May 2009.

2.  The Turkish Government (“the Government”) were represented by their Agent.

3.  On 23 April 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1975 and lives in Erzincan.

5.  The applicant was a civil servant in the Erzincan Provincial Directorate of Environment and Forestry, and at the time of the events he was a member of the local branch of a trade union affiliated to KESK (Kamu Emekçileri Sendikaları Konfederasyonu - Confederation of Public Employees’ Trade Unions).

6.  On 27 November 2004 and 12 December 2004 respectively, the applicant participated in a press statement and a demonstration organised by his trade union.

7.  Subsequently, a disciplinary investigation was initiated against the applicant for his participation in the above mentioned trade union activities.

8.  On 31 August 2005 a disciplinary sanction in the form of a reduction in salary was imposed on the applicant for having participated in trade union activities.

9.  On 27 October 2005 the applicant filed a petition with the Sivas Administrative Court and requested the annulment of the disciplinary sanction that had been imposed on him.

10.  On 18 May 2006 the Sivas Administrative Court dismissed the applicant’s request, considering that the administrative decision was in accordance with law and there were no grounds for its annulment.

11.  On 20 October 2008 the Supreme Administrative Court upheld the judgment of the Sivas Administrative Court.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

12.  The applicant complained that the disciplinary sanction that had been imposed on him for his participation in trade union activities, had amounted to disproportionate interference with his rights under the Convention. In this regard, he relied on Articles 5, 6, 7, 9, 10 and 11 of the Convention and Article 2 of Protocol No. 4. The Court considers that the applicant’s complaints fall to be examined under Article 11 of the Convention alone.

13.  The Government contested that argument.

A.  Admissibility

14.  The Government asked the Court to reject the application for non-exhaustion of domestic remedies, on account of the applicant’s failure to apply for the rectification of the judgment.

15.  The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, among others, Karaduman v. Turkey (dec.), no. 16278/90, 3 May 1993, and Ünal Tekeli v. Turkey (dec.), no. 29865/96, 1 July 2003). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court therefore rejects the Government’s preliminary objection in this regard.

16.  The Court notes that the application 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

17.  The applicant complained that the disciplinary sanction that had been imposed on him for his participation in trade union activities, had infringed his rights under the Convention.

18.  The Government contested that argument.

19.  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; Küçükbalaban and Kutlu v. Turkey, nos. 29764/09 and 36297/09, § 37, 24 March 2015; and Dedecan and Ok v. Turkey, nos. 22685/09 and 39472/09, § 38, 22 September 2015).

20.  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.

21.  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

22.  The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. 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.

Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı                                                                        Ledi Bianku
Deputy Registrar                                                                        President