CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF                         Application No. 22947/93                       by N.A.                       against Turkey         The European Commission of Human Rights sitting in private on 28 February 1994, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            F. ERMACORA            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS            F. MARTINEZ       Mrs. J. LIDDY       MM.   L. LOUCAIDES            M.P. PELLONPÄÄ            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            I. BÉKÉS            J. MUCHA            D. SVÁBY         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1st November 1993 by N.A. against Turkey and registered on 22 November 1993 under file No. 22947/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Turkish citizen of Kurdish origin, born in 1953 and resident at Diyarbakir. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex.         The facts as presented by the applicant may be summarised as follows.         The applicant has been, until recently, Head of the Diyarbakir Branch of the Education and Science Workers Union (Egit-Sen). The Union was founded in 1990, but the applicant's branch was declared illegal on 28 September 1992 by the Office of the Chief of Police and the Mayor of Diyarbakir.         Because of her activities on behalf of the members of Egit-Sen, the applicant has been the object of persistent threats and other forms of pressure which eventually forced her to leave her occupation as a teacher, to cease to function as a trade union official, and to be deprived of compensation otherwise due to her under Turkish law. She now lives alone with two children and remains in fear for her life and those of her children.         On 26 October 1992 a meeting between the applicant, some of her colleagues and the National Education Director had been arranged for the following day. The purpose was to appeal to the Director to put an end to attacks against members of Egit-Sen, since in October 1992 four members had been attacked, one of them had died, others were undergoing treatment, and about 40 members had been exiled in other regions.         When the applicant arrived at the meeting on 27 October 1992, she saw the building surrounded by plain clothes police and cameras made ready to film those arriving for the meeting. The Director said he could only receive a small group. The applicant organised a group of seven persons and told the others to leave, but the police did not allow anybody to leave and filmed and verbally abused the persons who had gathered there. Everybody's identity was checked. A woman who did not wish to show her identity papers was pulled by the hair and bundled into a waiting police car. Another thirteen educational workers were also taken away.         After the meeting the applicant went to the City Governor to complain of their treatment. The Governor's reply was that they had been told not to go to the National Education Directorate and that they had bad motives. He further said: "You don't raise your voices when the State's soldiers or police die. Why do you want to meet when teachers die?"         The day after these events the applicant received a telephone call and was told: "You are also going to die. It is now your turn. We are going to kill you off."         In November 1992 the applicant applied to the Diyarbakir State Prosecutor about the incident on 27 October 1992. After initial delays the case was dismissed in February 1993.         After the events on 27 October 1992 the applicant made a statement to the newspaper Diyarbakir Soz on 31 October 1992 under the headline "Eleven teachers detained in Diyarbakir". In that article she gave an account of the events prior to and including the meeting at the Directorate, focusing on the fact that the meeting had been by prior arrangement.         On 23 November 1992 she made another statement to the same newspaper in an open letter bearing the headline "24 November is not Teachers' Day". Referring to the fact that 24 November is a day designated to honour teachers, she stated in that open letter that teachers had little cause to celebrate such a day, and proceeded to indicate the ways in which education workers suffered. She listed, inter alia, the lack of trade union rights, the hours of work of teachers and their clothing allowance, the fact that students feel pressured to give a gift to their teacher which they often cannot afford. She then focused on her region and pointed to the exiles and attacks on teachers in the region, to the fact that classes were too large and to the fact that police interfere with the functioning of secondary schools by arresting students in class and insulting teachers.         As a result of these statements to the press, and of her trade union activity, the applicant was the subject of three formal findings by the National Education Ministry:   1.     On 22 February 1993 the Diyarbakir National Education Directorate declared that the applicant had violated Article 26 of Law No. 657, which prohibits statutory applications or complaints to be made jointly by two or more State officials and which also bans collective action by civil servants. The Directorate concluded that this was behaviour not suited to the dignity of a civil servant, which required the issue of a formal warning according to Article 125 of the said Law.   2.     On 5 March 1993 the Diyarbakir Provincial National Education Disciplinary Committee found that the applicant had taken part in the activity of a trade union whose authorities and responsibilities were not known, i.e. was an unauthorised and therefore illegal trade union. The applicant was also found to be in violation of Section 4 of Law No. 657 insofar as it prohibits "involvement in collective action and behaviour unsuitable to the dignity of a State official" as well as Article 26 of the same Law, which prohibits State officials from associating in groups of two or more in order to make an application or a complaint to their employer. Because of her statement to the newspaper on 23 November 1992 the applicant was also found to be in violation of Article 125 D(g) of the same Law, which prohibits State officials from "giving information and statements to the press, news agencies, radio or television institutions when not authorised to do so". As a result of these findings, the Committee sanctioned the applicant by a reduction in salary, in accordance with Article 125 C.   3.     On 14 May 1993 the Diyarbakir Provincial National Education Disciplinary Committee found that the applicant's statement to the newspaper on 31 October 1992 had been a violation of Article 125 D(g) of Law No. 657. Her case was then referred to the Provincial Office of National Education for consideration of blockage of her promotion, as authorised by Article 126 of the same Law.         Subsequently the applicant has been the subject of threats and pressure which have obliged her to leave her occupation as a teacher, and hence her position in the trade union. Because of the disciplinary penalties she has not been able to receive her severance pay and obstacles are placed in the way of her collection of her pension. She is also continuously being exposed to threats.   COMPLAINTS         The applicant complains of violations of Articles 2, 6, 10, 11, 13 and 14 (in conjunction with Articles 6 and 11) of the Convention and Article 1 of Protocol No 1.         As to Article 2, the applicant alleges that the threats against her create a well-founded fear that her life is in jeopardy. In view of the high incidence and systematic pattern of killings of Kurdish teachers in the Diyarbakir area, particularly of those prominent in the affairs of the Kurdish people, it would be reasonable to expect that the Turkish Government should take special measures to protect her right to life. By failing to do so, the Government is in violation of Article 2.         As to Article 6, the applicant states that none of the disciplinary decisions taken against her was the product of a fair and public hearing by an independent and impartial tribunal.         As to Article 10, the applicant submits that the penalties imposed upon her as a result of her statements to the newspaper are in conflict with her right to freedom of expression, for which there is no justification under para. 2 of Article 10.         As to Article 11, the applicant complains that she was subject to disciplinary penalties because of her trade union activities. She has also been exposed to threats and intimidation with a view to making her relinquish her functions as a trade unionist and to reprisals thereafter. Her right to peaceful assembly was also violated in connection with the meeting on 27 October 1992.         As to Article 13, the applicant complains of the lack of an effective remedy against the violations which occurred on 27 October 1992. She complained to the Diyarbakir State Prosecutor who, without any investigation and on the basis of statements by the police, dismissed the complaint.         As to Article 14 in conjunction with Articles 6 and 11, the applicant states that the violation of Article 6 in her case is the result of a breakdown in the system of justice to a degree that occurs on a systematic basis only in South-East Turkey, and that as a trade unionist she was subjected to legal disabilities and penalties which are not applied to trade union officials in other parts of Turkey.         As to Article 1 of Protocol No 1, the applicant considers that there has been a violation of her right to peaceful enjoyment of her possessions as a result of the refusal to make pension and severance payments after the termination of her employment.         As regards the exhaustion of domestic remedies, the applicant points out that, in regard to the incident on 27 October 1992, she applied to the Diyarbakir State Prosecutor who dismised the complaint in February 1993. She has not taken the matter further, since this would serve no purpose. There is also a fear of reprisal, which should be seen as a legitimate reason for not exhausting remedies. In any case remedies are not effective. There is a common practice of arbitrary application of the law, and for none of the wrongs she has suffered is there adequate prospect of her receiving justice by way of further recourse to domestic remedies.         As regards the six months' time-limit, the applicant considers that, in view of the threats and intimidation to which she is exposed, there is a continuing situation for the purposes of fixing the time-limit for application to the Commission. Alternatively, the latest disciplinary decision taken against her was dated 14 May 1993, which is within the six months' time-limit.-limit. As a further alternative, she considers that the six months' rule should be suspended in her case, since she has not been in a position to supply the full facts because of fear of reprisal from the authorities.   THE LAW   1.     The applicant complains of a violation of Article 2 (Art. 2) of the Convention in that the Turkish authorities have allegedly failed to provide her with the protection she needs in a situation where she has well-founded fears for her life.         Article 2 (Art. 2) of the Convention provides, inter alia, that "Everyone's right to life shall be protected by law". It is true that this provision imposes on the Contracting States an obligation to take appropriate steps to protect life (cf. No. 9348/81, Dec. 28.2.83, D.R. 32 p. 190; No. 11604/85, Naddaf v. the Federal Republic of Germany, Dec. 10.10.86, D.R. 50 P. 259). However, in the present case the applicant has not shown that she is exposed to such threats to her life as would make it necessary for the authorities to take specific protective measures.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant next complains of a violation of Article 6 (Art. 6) of the Convention in that she did not have a fair and public hearing by an independent and impartial tribunal in the disciplinary proceedings brought against her.         Article 6 (Art. 6) of the Convention provides, inter alia, that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...".         However, the proceedings brought against the applicant were clearly of a disciplinary character and cannot be considered to have concerned either her civil rights or obligations or the determination of a criminal charge against her (cf. No. 9208/80, Saraiva de Carvalho v. Portugal, Dec. 10.7.81, D.R. 26 p.262; No. 10059/82, Dec. 5.7.85, D.R. 43 p.5). Consequently, Article 6 (Art. 6) was not applicable to those proceedings.         It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The applicant also complains of a violations of Article 10 (Art. 10) of the Convention in that she has been subjected to disciplinary measures because of statements which she made to a local newspaper.         Article 10 (Art. 10) of the Convention reads, insofar as relevant, as follows:              "1. Everyone has the right to freedom of expression. This            right shall include freedom to hold opinions and to receive            and impart information and ideas without interference by            public authority and regardless of frontiers. ...              2. The exercise of these freedoms, since it carries with it            duties and responsibilities, may be subject to such            formalities, conditions, restrictions or penalties as are            prescribed by law and are necessary in a democratic society,            in the interests of national security, territorial integrity            or public safety, for the prevention of disorder or crime, for            the protection of the reputation or rights of others, for            preventing the disclosure of information received in            confidence, or for maintaining the authority and impartiality            of the judiciary."         The Commission notes that on 5 March 1993 the Diyarbakir Provincial National Education Discipline Committee imposed a disciplinary penalty on the applicant for having made a statement to a newspaper on 23 November 1992.         However, according to Article 26 (Art. 26) of the Convention, the Commission may only deal with a complaint which has lodged within a time- limit of six months from the date of the final domestic decision. The present application was introduced on 1 November 1993, i.e. more than six months after the contested decision of 5 March 1993.         The applicant has stated that, in view of the threats and intimidation to which she has been exposed and her fear of reprisals, the situation should be regarded as a continuing one, or that the six months' time-limit should be considered to have been suspended in her case.         The Commission cannot find that, as regards the disciplinary sanction for the statement to the press on 23 November 1992, there exists a continuing violation of the Convention. Nor has it been shown that the applicant was unable to complain to the Commission during the six months following the decision of 5 March 1993.         It follows that the complaint regarding the decision of 5 March 1993 must be rejected in accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.         The Commission further notes that, in its decision of 14 May 1993, the Diyarbakir Provincial National Education Disciplinary Committee found that the applicant had violated Turkish law by addressing a statement to a local newspaper on 31 October 1992. As far as the complaint regarding this decision is concerned, the Commission finds it necessary to obtain the observations of the respondent Government before taking a decision on its admissibility.   4.     The applicant further complains of a violation of her right to peaceful assembly ensured by Article 11 (Art. 11) of the Convention in respect of the following:   -      alleged threats and intimidation with a view to making her       relinquish her functions as a trade unionist;   -      alleged reprisals after she had relinquished these functions;   -      the decisions of 22 February 1993 (the Diyarbakir National       Education Directorate) and 5 March 1993 (the Diyarbakir       Provincial National Education Disciplinary Committee) in which       the applicant's exercise of trade union rights were found to be in       violation of Turkish law; and   -      police intervention and the ensuing events on 27 October 1992.         Article 11 (Art. 11) of the Convention provides 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."   a)     The Commission first considers that, insofar as the applicant alleges in general terms that she has been exposed to threats, intimidation and reprisals, she has not substantiated her complaints. This aspect of her complaint is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)     As regards the decisions of 22 February and 5 March 1993, the Commission notes that the application was introduced more than six months after the dates of these decisions. For the reasons indicated above under point 3 above, the Commission considers that in this respect there is no continuing situation and that it has not been shown that the applicant was unable to complain to the Commission within the six months' time- limit.         As regards the complaint about events on 27 October 1992, the Commission notes that the applicant complained to the State Prosecutor, who dismissed the matter in February 1993. She did not, however, complain to the Commission within six months of this rejection of her complaint. In this respect too, there is no question of a continuing situation, and it has not been shown that the applicant was unable to lodge her complaint with the Commission within the applicable time-limit.         It follows that, as regards the decisions of 22 February and 5 March 1993 and events on 27 October 1992, the applicant's complaints must be rejected pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   5.     The applicant next complains of a violation of Article 13 (Art. 13) of the Convention in that there was no effective remedy against the alleged violation of her rights with the events on 27 October 1992.         Article 13 (Art. 13) guarantees the right to an effective remedy before a national authority in respect of violations of Convention rights and freedoms.         The Commission recalls that it has found the complaint regarding the events on 27 October 1992 to be inadmissible for non-observance of the six months' time-limit (see point 4 b) above). It follows that the same ground of inadmissibility applies to the complaint under Article 13 (Art. 13) of the Convention, which must, therefore, also be rejected pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3).   6.     The applicant also complains of violations of Article 14 in conjunction with Articles 6 and 11 (Art. 14+6+11) of the Convention, in that the situation in South-East Turkey is such as to constitute discrimination against her in the enjoyment of her rights under the latter provisions.         Article 14 (Art. 14) of the Convention prohibits discrimination in the enjoyment of Convention rights and freedoms.         The Commission recalls that the applicant's complaint under Article 6 (Art. 6) has been found to be incompatible with the Convention ratione materiae (see point 2 above), and that the applicant's complaints under Article 11 (Art. 11) have been found to be partly manifestly ill-founded and partly inadmissible for having being introduced after the expiry of the six months' time-limit (see point 4 above). The Commission finds that the complaints about violations of Article 14 (Art. 14+6+11) in conjunction with these Articles are inadmissible on the same grounds. They must, therefore, be rejected pursuant to Article 27 para. 2 and Articles 26 and 27 para. 3 (Art. 27-2, 26, 27-3) respectively.   7.     Finally, the applicant complains of a violation of Article 1 of Protocol No 1 (P1-1) in that her right to the peaceful enjoyment of her possessions has been breached as a result of the refusal to pay her a pension and a severance allowance after the termination of her employment.         The first paragraph of Article 1 of Protocol No 1 (P1-1) provides as follows:              "Every natural or legal person is entitled to the peaceful            enjoyment of his possessions. No one shall be deprived of his            possessions except in the public interest and subject to the            conditions provided for by law and by the general principles            of international law".         However, the Commission does not find it established that the applicant had, under Turkish law, a right to the financial benefits at issue. Consequently, it has not been shown that she has been denied the peaceful enjoyment of her possessions or that she has been deprived of any property.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,   -      ADJOURNS its examination of the applicant's complaint about a       violation of her freedom of expression allegedly resulting from the       decision of the Provincial National Education Disciplinary Committee       on 14 May 1993;   -      DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary to the Commission         President of the Commission          (H.C. KRÜGER)                      (C.A. NØRGAARD)