CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 septembre 2007

.s800EAC49 { font-size:12pt } .sBAD4A028 { margin-top:0pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .sC800182F { font-family:Arial; color:#0000ff } .sEC7CF00 { margin-top:12pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .sBB9EE52A { font-family:Arial } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sD5D4358A { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sD92D5E13 { margin-top:24pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sFC1B4D41 { margin-top:36pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s8ED1F3C2 { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8B80EBE7 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s5A00354 { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s1D757DF6 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .s450434BC { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s48125EFE { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } [TRANSLATION] ... THE FACTS The applicant, Mr Osman Suküt, is a Turkish national who was born in 1972 and lives in Kayseri. He was represented before the Court by Mr   T.   Demirel, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not appoint an Agent for the purposes of the proceedings before the Court. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1972 and lives in Kayseri. At the material time he was a non-commissioned officer with the rank of “staff sergeant tanker” ( tankçı üstçavuş ) and had been serving in the army since 1990. On 9 July 1997 he received an initial letter from the commanding officer of his regiment, M.S.: “I have been watching your and your family’s lifestyle and behaviour since the day I joined the regiment. Although I have already given you a verbal warning on the subject, I have not noticed any change, either in your appearance or in your behaviour. I have observed that your family ( ailece ) do not comply with [the rules governing] clothing and behaviour. I shall give you one month. If, on the expiry of this period, I cannot see any change in the areas I have mentioned, I shall bring legal proceedings ( kanunî işlem ) against you.” In a second letter dated 8 December 1998 the battalion commander, İ.Ü., gave the applicant a warning: “1. According to information obtained, my own observations and those of the regiment commander, your wife dresses in an anti-modern ( çağdaşlığa aykırı ), Islamic fashion ( tesettür kıyafeti ), with the head covered. ... 3. I am giving you a warning to ensure that, without delay, you change this negative conduct, which does not correspond to [that expected of] members of the Turkish armed forces (TSK) and their families. ...” In his observations of the same day, the applicant argued: “I have been serving my country for nine years in all circumstances. I consider it an honour ... I have never had any particular links with an ideology or political opinion, whether at work or in my private life. ... I have already had several discussions with my wife about her choice of attire. She has always told me that she saw it as the traditional way to dress and that it had no political connotations. She also said that her private life concerned her alone and that even I could not interfere with her style of dress or her choice to wear the headscarf. Even so, I informed her of all the warnings from my superiors. She replied that she could not understand what was meant by ‘inappropriate conduct for TSK personnel and their families’, adding that she had not displayed any conduct that could harm her country, nation or family, or any immoral attitude. I have done all I can. I have various problems to deal with as we have a two-year-old child.” In three other warning letters, dated 14, 25 and 28 January 1999, the applicant’s superiors reiterated their demands. The applicant defended himself in similar terms. According to the information and documents submitted by the Government, the head of the personnel office inspected the applicant’s confidential service record ( gizli sicil dosyası ), the records of his salary and allowances ( özlük dosyaları ) and “other personal files”. Taking into consideration various documents in these files and the applicant’s conduct, the office established that the applicant held political and ideological views of an unlawful, subversive, separatist and fundamentalist nature. The office forwarded the file on the applicant to a committee consisting of nine high-ranking officers. The following information could be gathered from the file, which was classified as strictly confidential: “A.     As regards Mr Suküt’s conduct and attitudes: A.a.     Mr Suküt holds revolutionary Islamist views; A.b.     He has supported the view that the nation’s law and administration should be based on sharia; A.c.     He is opposed to Atatürk’s principles and revolutions and to the main achievements of the Republic, and it is impossible for him to alter these opinions; A.d.     He has played an active part in movements seeking to destroy the unity and integrity of the Turkish armed forces. B.     Information regarding Mr Suküt’s personality B.a.     Mr Suküt has refused to take part in the armed forces’ social activities on the ground that they were immoral; he has not formed any relations with his colleagues; B.b.     He forbids his wife even to look out of the window of their house or to go outside; he hits her when she attempts to breach this rule; B.c.     He is in a close relationship with people who have ideological views and with people who are members of illegal organisations; B.d.     He spreads propaganda on religious and reactionary topics. C.     Other remarks: Mr Suküt’s two immediate superiors have noted the following observations in his confidential record as regards his professional attitude: C.a.     He holds negative professional and ideological views; C.b.     He holds reactionary opinions; C.c.     He does not take part in social activities and meetings; C.d.     In their opinion, his continuing service in the armed forces is inappropriate, on the ground that he holds fundamentalist and ideological views.” The committee gave a unanimous opinion in favour of the applicant’s compulsory early retirement. After examining the file, the applicant’s highest-ranking superior endorsed the committee’s opinion and sent the file to the head of the personnel office. As the latter considered that an examination of the applicant’s status was necessary, the file was referred to the Supreme Military Council ( Yüksek Askeri Şûra ). On 2 August 1999 the applicant’s compulsory early retirement on disciplinary grounds was ordered in a decision of the Supreme Military Council, pursuant to sections 50 (c) and 94 (b) of the Military Personnel Act (Law no. 926). In accordance with the Constitution, the decision was not subject to judicial review (see “Relevant domestic law” below). B.     Relevant domestic law Article 125 of the Constitution “All acts or decisions of the administration are subject to judicial review. Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.” Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that civil servants other than members of the armed forces cannot be subjected to disciplinary penalties unless they are granted the right to defend themselves. It further provides that disciplinary penalties other than warnings and reprimands are subject to judicial review. Provisions concerning members of the armed forces are reserved. Section 94 (b) of the Military Personnel Act (Law no. 926) “Discharge for breaches of discipline and immoral behaviour Irrespective of length of service, non-commissioned officers whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations on assessment of non-commissioned officers shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted to it by the Chief of Staff.” Regulation 53 (e) of the Regulations on assessment of non-commissioned officers states that the compulsory early-retirement procedure is to be applied to any non-commissioned officers whose conduct and attitude show that they have held unlawful, subversive, separatist, fundamentalist and ideological political opinions or taken an active part in the propagation of such opinions. COMPLAINTS 1.     Relying on Articles 6 and 13 of the Convention, the applicant complained that he had not had an effective remedy by which to challenge the Supreme Military Council’s decision in the domestic courts. ... THE LAW ... B.     The Court’s assessment ... 3.     Alleged violation of Article 6 of the Convention (a)     Applicability (i)     Whether there was a “criminal charge” The Court observes that in cases involving very similar circumstances it has held that a discharge from the armed forces cannot be regarded as a criminal penalty for the purposes of Article 6 § 1 of Convention (see, among many other authorities, Tepeli and Others [ v. Turkey (dec.), no.   31876/96, 11 September 2001]). There are no special circumstances in the present case warranting a departure from that conclusion. (ii)     Whether there was a dispute (“ contestation ”) over “civil” rights The Court has recently had the opportunity to reconsider its case-law concerning the applicability of Article 6 § 1 to disputes between the State and its agents (see Vilho Eskelinen and Others v. Finland [GC], no.   63235/00, ECHR   2007– ...). In Vilho Eskelinen and Others (ibid., § 62) the Court introduced two cumulative criteria for the respondent State to satisfy in order to be able to argue successfully that Article 6 § 1 was not applicable to an applicant who was a civil servant. Firstly, the civil servant must have been expressly excluded from the right of access to a court by domestic law; secondly, exclusion from the rights guaranteed by Article 6 must be justified on objective grounds in the State’s interests. In the instant case it is not disputed that the applicant did not have access to a court under national law. The first condition is therefore satisfied (contrast Vilho Eskelinen and Others , cited above, § 63). As to the second condition, the Court notes that in order for a restriction of the applicability of Article 6 § 1 to a civil servant to be justified, the respondent State must show that the subject of the dispute is related to the exercise of State power or calls into question the “special bond of trust and loyalty” between the civil servant and the State, as employer (ibid., § 62). In the present case the dispute concerns the applicant’s discharge from the army for breaches of discipline. The discharge was ordered on the basis of a finding by the military authorities that the applicant did not have the profile required to continue serving as an army officer, as his conduct and attitude were considered to undermine military discipline and the principle of secularism. The Court observes that the calling into question of the “special bond of trust and loyalty” between the applicant and the State, as his employer, was incontestably central to the dispute. Exclusion from the rights guaranteed by Article 6 is therefore justified in the applicant’s case. (b)     Conclusion Having regard to its above findings, the Court considers that Article 6 is not applicable in the particular circumstances of the present case. ... For these reasons, the Court unanimously Declares the application inadmissible.