CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 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. 31117/96                       by Mehmet AGKO                       against Greece           The European Commission of Human Rights sitting in private on 20 October 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 22 April 1996 by Mehmet AGKO against Greece and registered on 23 April 1996 under file No. 31117/96;         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 Greek citizen, born in 1949. He resides in Xanthi, Greece.   In the proceedings before the Commission he is represented by Mr. O. Haciibram, a lawyer practising in Xanthi.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows:         The applicant, who considers himself a member of the Turkish Muslim minority of Thrace, is a graduate of the Special   Academy for Teachers (Idiki Pedagoyiki Akadimia) of Thessaloniki. He used to work as a teacher in one of the minority schools in the Prefecture of Xanthi. His conditions of employment were not different from those of other civil servants.         On 6 March 1994 the Union of Turkish Teachers of Western Thrace issued a statement to express its disagreement with ministerial decision No. Z2/219/24-5-1993 concerning the procedure for the hiring of Muslim teachers on a temporary basis with private-law contracts. On 21 March 1994 the Executive Committee of the Union called on the teachers and pupils of the minority schools not to attend school between 28 March 1994 and 2 April 1994. The Committee claimed that it had the support of a number of Turkish minority organisations.         On 28 March 1994 the applicant made a declaration to the Minority Schools Office of the Prefecture of Xanthi to the effect that he would not perform his duties between 28 March 1994 and 2 April 1994.         On 7 June 1994 disciplinary proceedings were instituted against him. On 20 December 1994 the Regional Disciplinary Board of Xanthi decided that the applicant should be dismissed on the ground that he lacked faith in and dedication to his country (Article 206 para. 1 subpara. 1 of the Civil Servant's Code), had refused to discharge his duties (Article 206 para. 1 subpara. 19 of the Code), had intentionally engaged in an act or omission which could damage or endanger the interests of the State (Article 206 para. 1 subpara. 27 of the Code) and had acted illegally in the discharge of his duties (Article 206 para. 1 subpara. 28 of the Code).         On 21 February 1995 the applicant appealed to the Council of State (Simvulio Epikratias). He submitted that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to perform his duties because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further claimed that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that the decision instituting proceedings against him was vague and that he had been punished for offences which were not mentioned therein. Finally, he argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which must have been punished with the particular penalty.         In a decision delivered on 30 October 1995 the Council of State considered that the inquiry ordered in the applicant's case satisfied the requirements of the law. It also found that the decision instituting proceedings against him was not vague since it mentioned that the applicant had to be disciplined for having failed to perform his duties between 28 March 1994 and 2 April 1994; as for the rest, the Disciplinary Board and the Council of State remained free to examine the facts for which disciplinary proceedings had been instituted against the applicant under different legal provisions from those mentioned in the decisions instituting such proceedings. The Council of State considered that the applicant had no reason not to perform his duties between 28 March 1994 and 2 April 1994 and had, moreover, associated this abstention with statements of organisations which proclaimed themselves to represent the "Turkish" teachers of Western Thrace. As a result, he had committed the disciplinary offence of particularly inappropriate behaviour in the exercise of his duties. Moreover, the Council found that the applicant had abstained from his duties following the calls for action of the so-called "Turkish" teachers' organisations. As a result, the penalty of dismissal was appropriate, because his actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. Finally, the Council considered that the decision of the Board was duly reasoned. For these reasons, the Council of State decided to reject the applicant's appeal.     COMPLAINTS   1.     The applicant complains under Article 6 of the Convention about the unfairness of the decisions ordering and upholding his dismissal. He stresses that it was obvious that the Disciplinary Board and the Council of State took into consideration the statements of the various organs of the minority when deciding to impose such a harsh penalty. He submits that this was illegal.   2.     He also complains under Article 11 of the Convention that he was punished with dismissal for having participated in a peaceful collective mobilisation intended to express his discontent with "the chronic problems of the minority education system".   3.     Finally, he complains of a violation of Article 9 of the Convention and Article 2 of Protocol No. 1, because the aim of his protest, for which he was punished, was to safeguard the right of minority parents to educate their children in conformity with their own religious and philosophical convictions.     THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention about the unfairness of the decisions ordering and upholding his dismissal from the civil service.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "In the determination of his civil rights and obligations or of       any criminal charge against him, everyone is entitled to a fair       ... hearing ... by (a) ... tribunal ..."         The Commission recalls that, according to the case-law of the Court, disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention because they do not involve a determination of civil rights and obligations (Eur. Court HR, Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32, paras. 43 and 44). The applicant was a civil servant. It follows that the proceedings in question did not involve a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission, moreover, considers that the proceedings were exclusively disciplinary in character and led to no deprivation of liberty. It follows that they did not involve the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (No. 15965/90, Dec. 15.1.93, D.R. 74, p. 76).         The Commission, therefore, finds that Article 6 para. 1 (Art. 6-1) did not apply to the proceedings in question. As a result, this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with its Article 27 para. 2 (Art. 27-2).   2.     The applicant complains under Articles 9 and 11 (Art. 9, 11) of the Convention that he was punished with dismissal for having participated in a peaceful collective mobilisation intended to express his discontent with "the chronic problems of the minority education system" and to safeguard the right of minority parents to educate their children in conformity with their own religious and philosophical convictions.         Article 9 (Art. 9) of the Convention provides as follows:         "1.   Everyone has the right to freedom of thought, conscience       and religion; this right includes freedom to change his religion       or belief and freedom, either alone or in community with others       and in public or in private, to manifest his religion or belief,       in worship, teaching, practice and observance.         2.    Freedom to manifest one's religion or beliefs shall be       subject only to such limitations as are prescribed by law and are       necessary in a democratic society in the interests of public       safety, for the protection of public order, health or morals, or       for the protection of the rights and freedoms of others."         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."         The Commission notes that the Council of State found the applicant responsible for particularly inappropriate behaviour in the exercise of his duties, a disciplinary offence, in that he had failed to perform his duties between 28 March 1994 and 2 April 1994 and had associated this behaviour with statements of organisations which proclaimed themselves to represent the "Turkish" teachers of Western Thrace. Moreover, the Commission notes that the statements of these organisations called for collective action by the pupils and teachers to protest against a ministerial decision concerning the functioning of the minority schools. Finally, according to the Council of State, dismissal was the appropriate penalty in the particular circumstances of the case because the statements with which the applicant had associated the failure to perform his duties affirmed the "Turkish" identity of the minority of Western Thrace. The Council of State considered that, by doing so, the applicant had, inter alia, disrupted the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. The Commission, therefore, considers that the applicant was punished both for having participated in a strike and for certain views which he was deemed to have expressed by doing so.         According to the case-law of the Commission, complaints concerning the right to strike fall to be examined under Article 11 (Art. 11) of the Convention, which is the lex specialis in relation to Articles 9 and 10 (Art. 9, 10) (Young, James and Webster v. the United Kingdom, Comm. Report 14.12.79, para. 172, Eur. Court HR, Series B no. 39, p. 48). However, the Commission does not exclude that a separate issue could arise under Article 10 (Art. 10) of the Convention, since the Council of State clearly indicated that dismissal would not have been the appropriate penalty for a few days' absence form work, if the applicant had not, by his actions, sought to express the idea that a "Turkish" minority existed in Thrace.         Insofar as Article 11 (Art. 11) of the Convention is concerned, the Commission does not consider it necessary to examine whether the applicant has exhausted domestic remedies. According to the case-law of the Commission, Article 11 (Art. 11) of the Convention does not guarantee the right of civil servants to strike (No. 10365/83, Dec. 5.7.84, D.R. 39 p. 237). It follows that no appearance of a violation of this provision arises in this connection.         The Commission, therefore, considers that the part of the application which concerns the applicant's punishment for his participation in a strike is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Insofar as Article 10 (Art. 10) of the Convention is concerned, the Commission recalls that the applicant received a harsher penalty because, by participating in the strike, he was deemed to have expressed the view that the minority in Western Thrace had a "Turkish" identity and this had, inter alia, disrupted the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in the area. Moreover, in another case the Commission considered that it constituted an impermissible limitation of the right of freedom of expression to find somebody guilty of "sowing discord" among the citizens on the ground that he had used the term "Turkish" to refer to the Muslim minority of Western Thrace in the context of an electoral campaign (Ahmet Sadik v. Greece, Comm. Report 4.4.95, paras. 53-54, Eur. Court H.R. Reports 1996).         However, the Commission also recalls that under Article 26 (Art. 26) of the Convention it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. Moreover, according to the case- law of the Commission and the Court, the fact that a domestic court of appeal is competent to examine proprio motu grounds amounting to a violation of the Convention does not absolve the applicant from the obligation of raising the complaint before the court himself (No. 11244/84, Dec. 2.3.87, D.R. 55, p. 98; Eur. Court HR, Ahmet Sadik v. Greece judgment of 15 November 1996, Reports 1996-V, No. 20, para. 33).           In the circumstances of the case, the applicant has not in any manner affirmed before the Council of State his right to express the view that the minority to which he belongs has a "Turkish" identity. It follows that the applicant has failed to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention in this connection.         The Commission, therefore, considers that the part of the application which concerns the applicant's harsher punishment for the views he was deemed to have expressed by participating in the strike must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   4.     The applicant complains of a violation of Article 2 of Protocol No. 1 (P1-2), because the aim of his protest, for which he was punished, was to safeguard the right of minority parents to educate their children in conformity with their own religious and philosophical convictions.         The Commission considers that the applicant, who is a teacher, cannot claim to be a victim of a violation of this provision, which guarantees rights for pupils and their parents. It follows that no appearance of a violation of Article 2 of Protocol No. 1 (P1-2) arises.           This part of the application is, therefore, manifestly ill- founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.            M. de Salvia                          S. TRECHSEL           Secretary                             President        to the Commission                     of the Commission