CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1997

.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. 23143/93                       by Yüksel Zengin                       against Turkey          The European Commission of Human Rights sitting in private on 8 September 1997, the following members being present:                Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              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 7 December 1993 by Yüksel Zengin against Turkey and registered on 21 December 1993 under file No. 23143/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      29 July 1995 and the observations in reply submitted by the      applicant on 20 September 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish national of Kurdish origin born in Maden in 1966. She is a teacher and lives in Dyiarbakir.   She represented before the Commission by Professor Kevin Boyle, Ms. Françoise Hampson and Ms. Sheldon Leader, all university teachers at the University of Essex.        The facts of the present case as submitted by the parties may be summarised as follows:        The applicant is a member of the Diyarbakir Branch of the Education and Science Workers Union (Egit-Sen). The Union was founded on 13 November 1990, but has never been granted formal legal status. The Diyarbakir Branch was declared illegal by the Office of the Chief of Police and the Mayor of Diyarbakir.        On 17 April 1993 Egit-Sen held a press conference at the issue of which the applicant gave a written statement in her capacity of secretary of the union.        On 2 July 1993 the Diyarbakir Province National Education Disciplinary Committee examined a proposal to impose a disciplinary sanction on the applicant. It was stated in the proposal that the applicant had signed a statement relating to a press conference as the Secretary to Egit-Sen, a trade union whose authorities and responsibilities were not known, i.e. its activities in Diyarbakir Province were unauthorised and therefore illegal. The proposal was brought in accordance with Article 125 D(g) of Law No. 657, which prohibits State officials from "giving information and statements to the press, news agencies, radio or television institutions when not authorised to do so". The proposed sanction was to suspend the applicant's promotion for a period of one year. The Committee, considering   that the applicant had a good record and that her defence was partly satisfactory, rejected the proposal and sent the file to the Governor's Office.        On 8 July 1993 the Governor of Diyarbakir Province imposed on the applicant a disciplinary sanction of reduction of 1/30 of her salary in accordance with Article 125 C of Law No. 657.        The applicant filed an appeal, arguing that the Egit-Sen union was not illegal and that at any rate her statement to the press did non concern her activity as a teacher.        On 12 May 1994 the Dyiarbakir Administrative Court rejected her appeal on the ground that the applicant's public statement without authorisation was contrary to Law no. 657.        The applicant did not lodge an appeal to the Council of State.     COMPLAINTS   1.    The applicant complains that the penalty which was imposed upon her on 8 July 1993 constituted an unjustified interference with her freedom of expression guaranteed by Article 10 of the Convention.        As regards exhaustion of domestic remedies for the purposes of Article 26 of the Convention, the applicant submits that it was highly unlikely that she would have succeeded in having her conviction overturned on an appeal to the Council of State.   2.    The applicant complains under Article 11 of the Convention that the disciplinary penalty imposed on her on 8 July 1993 for signing a press statement in her capacity as a trade union official constituted and unjustified interference with her freedom of association guaranteed by Article 11 of the Convention. She also complains that the trade union Egit-Sen is illegal and has been refused recognition from the authorities.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 December 1993 and registered on 21 December 1993.        On 3 April 1995 the Commission decided to communicate the applicant's complaints concerning her disciplinary sanctions to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 29 July 1995. The applicant replied on 20 September 1995.     THE LAW   1.    The applicant complains that the penalty which was imposed upon her on 8 July 1993 constituted an unjustified interference with her freedom of expression guaranteed by Article 10 (Art. 10) of the Convention.        As regards exhaustion of domestic remedies        The Government submit that the applicant has not exhausted domestic remedies, as she did not appeal to the Council of State.   They point out that both Article 125 of the Turkish Constitution and Article 135/2 of Law 657 provide for a judiciary remedy against administrative decisions.   The Government submits in this respect jurisprudence of the Council of State where a disciplinary sanction of dismissal of a civil servant for having made a political statement had been cancelled, the Council of State considering that the State must recognise the rights and freedoms ensuing from Conventions accepted.        The applicant considers that it was highly unlikely that she would have succeeded in having her conviction overturned on an appeal to the Council of State, as the limitations on the freedom of expression imposed by Law No. 657 are so broadly drawn that they are in violation of the Convention.        Article 10 (Art. 10) of the Convention provides, insofar as relevant :        "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 health      or morals, 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 recalls, however, that under the terms of Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts.   It is also necessary for the complaint brought before the Commission to have been raised, at least in substance, during the proceedings in question.   On this point the Commission refers to its constant case-law (cf., for example, Nos. 5573/72 and 5670/72, Dec. 16.7.76, D.R 7., p. 8).        The Commission also recalls that the Court emphasised that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it recognised that Article 26 (Art. 26) must be applied with some degree of flexibility and without excessive formalism and that it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. Article 26 (Art. 26) of the Convention normally requires also that the complaints intended to be made subsequently before the Commission   should have been made to those same courts, at least in substance and in compliance with the formal requirements and time- limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, para. 34; Eur. Court H.R., Sadik v. Greece judgment of 15 November 1996, to be published).        In the present case, at no time, however, did the applicant rely on Article 10 (Art. 10) of the Convention, or on arguments to the same or like effect based on domestic law, in the courts dealing with her case.        Even assuming that the applicant's arguments before the domestic courts where such that she could be considered as having raised in substance her complaint under Article 10 (Art. 10), the Commission notes that the she did not appeal against the judgement of Dyiarbakir Administrative Court.        In that respect the applicant claims that this would have been an ineffective remedy as constant case-law of the Council of State shows that such complaints are rejected. However, the applicant did not submit any case-law supporting her allegations.        On the other hand, the Commission notes that, according to the case-law submitted by the respondent Government, the Council of State has already reversed disciplinary sanctions taken against civil servants for unauthorised public statements, on the ground that such sanctions were contrary to the rights and freedoms guaranteed by accepted Conventions.        Moreover, the Commission also recalls that it has constantly held that the mere existence of doubts as to the prospects of success does not absolve an applicant from exhausting a given remedy (cf. Nos. 5577- 5583, Dec. 15.12.75, D.R. 4, pp. 4-72 with further references).        The Commission accordingly finds that the applicant cannot be considered to have exhausted the effective remedies available under Turkish law.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains under Article 11 (Art. 11) of the Convention that the disciplinary penalty imposed on her on 8 July 1993 for signing a press statement in her capacity as a trade union official constituted and unjustified interference with her freedom of association guaranteed by Article 11 (Art. 11) of the Convention. She also complains that the trade union Egit-Sen is illegal and has been refused recognition from the authorities.        Article 11 (Art. 11) of the Convention provides :        "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."        According to the Government, the applicant was sanctioned not because of her union activities, but for having made statements without authorisation. As to the applicant's freedom of association, the Government point out that the union of civil servants has been recognised by the National Assembly and that a future law will govern this right. On the other hand, Egit-Sen has never been recognised and is therefore illegal.        The applicant states that there is an administrative practice preventing teachers and other civil servants to form and join trade unions and that the existence of this administrative practice renders an appeal to the Council of State ineffective.        However, the Commission notes that this complaint concerns the disciplinary sanction imposed on the applicant on 8 July 1993. The Commission therefore refers to its findings above concerning the exhaustion of domestic remedies.        Accordingly, the Commission notes that the applicant has neither raised the present complaint before the national courts, nor has she appealed the Dyiarbakir Administrative Court's judgment of 12 May 1994.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies.   This part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        The applicant also complains in the name of the union Egit-Sen that the latter is illegal and has been refused recognition from the authorities.   However, the Commission notes that the applicant has not submitted a power enabling her to represent Egit-Sen before the Commission.        Insofar as this part of the complaint concerns the rights of the union Egit-Sen, the Commission considers that the applicant cannot be considered as a 'victim' within the meaning of   Article 25 par. 1 (Art. 25-1) of the Convention.        This part of the application must, therefore, be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission