CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 décembre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sC02E897A { margin-top:42pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s780F5245 { border:0.75pt solid #000000; clear:both } .s795B4A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:11pt } .sD9FE5EFA { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:11pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCF7129D5 { margin-top:12pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s8565C3AF { margin:8pt 28.35pt 3pt 17pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .s7ED160F0 { text-decoration:none } .s659CE682 { font-family:Arial; font-size:11pt; font-weight:bold; text-decoration:underline; color:#0069d6 } .sF13A94BC { margin:0pt 28.35pt 3pt 34pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .s695099B3 { width:10.89pt; text-indent:0pt; display:inline-block } .s3F015572 { margin:0pt 28.35pt 3pt 51pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .sB6D33163 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0069d6 } .s833B1EA7 { width:7.55pt; text-indent:0pt; display:inline-block } .s4859184F { width:7pt; text-indent:0pt; display:inline-block } .sB12058F2 { width:8.11pt; text-indent:0pt; display:inline-block } .sEAB539EC { width:7.83pt; text-indent:0pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s76CF415B { page-break-before:always; clear:both } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s586AA269 { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s8C49A017 { margin-left:5.65pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sE5F2997 { font-family:Arial; font-style:italic; color:#3a3a3a } .s1FDD0FD2 { font-family:Arial; color:#3a3a3a } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s14C34524 { font-size:8pt; vertical-align:super } .sECF8538A { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sED96C1EA { margin-top:14pt; margin-left:11.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D69DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:11pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s85A364CF { width:35.31pt; text-indent:0pt; display:inline-block } .s2E819D4D { margin-top:14pt; margin-left:21.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s38A1A3E1 { margin-top:0pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .s3FA6240E { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .s391E78BA { font-family:Arial; background-color:#ffffff } .s38FD3041 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; background-color:#ffffff } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s68C67F98 { margin-top:14pt; margin-left:66.35pt; margin-bottom:6pt; text-indent:-16.7pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s60C44206 { font-family:Symbol } .s14AC500A { width:3.73pt; font:7pt 'Times New Roman'; display:inline-block } .sB6B9BB7C { width:4.55pt; font:7pt 'Times New Roman'; display:inline-block } .s6AAE8166 { margin-top:14pt; margin-left:51.9pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sAEC88898 { margin-top:0pt; margin-left:68.6pt; margin-bottom:6pt; text-indent:-16.7pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3FD17360 { width:3.18pt; font:7pt 'Times New Roman'; display:inline-block } .s7483BB9D { margin-top:14pt; margin-left:68.6pt; margin-bottom:6pt; text-indent:-16.7pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s968A8F81 { width:4pt; font:7pt 'Times New Roman'; display:inline-block } .s5C5E66B9 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super } .sFCC17DF1 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA7EA9CB9 { width:178.3pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3BF0B6C7 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF3FB42D2 { margin-top:14pt; margin-bottom:12pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s2571CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:14pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right }   SECOND SECTION CASE OF PİŞKİN v. TURKEY (Application no. 33399/18)   JUDGMENT   Art 6 § 1 (civil) • Fair hearing • Art 8 • Private life • Inadequate judicial review of the dismissal of an employee in a public institute, under an emergency legislative decree, for his alleged ties to a terrorist organisation regarded as the instigator of the attempted coup of 15   July 2016 • Dismissal authorised under a non-adversarial simplified procedure, without procedural safeguards or individualised summary of the reasoning • Stigmatisation and serious impact on the applicant’s professional and social reputation • Absence of a thorough and serious investigation by the domestic courts Art 15 • Failure to comply with the requirements of a fair hearing, unjustified by the derogation in time of emergency • Simplified dismissal procedure that could be justified in the light of the very special circumstances of the emergency • Emergency legislative decree that did not clearly and explicitly rule out judicial review of the measures taken for its implementation   STRASBOURG 15 December 2020   FINAL   19/04/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Contents INTRODUCTION THE FACTS I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE A.   Background to the case B.   The failed military coup of 15 July 2016 C.   Termination of the applicant’s employment contract D.   The applicant’s efforts to resume his duties E.   The applicant’s individual appeal F.   Criminal investigation II.   RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE A.   The Turkish Constitution B.   Emergency Legislative Decree No. 667 (Law No. 6749) C.   Legal regulations on employment contracts and the Labour Code D.   Reopening of proceedings E.   Case-law of the Constitutional Court F.   Case-law of the Court of Cassation III.     RELEVANT INTERNATIONAL MATERIALS A.     Opinion on Emergency Legislative Decrees Nos. 667 to 676 adopted by the European Commission for Democracy through Law of the Council of Europe (Venice Commission) B.     General Comment no.   29 on the state of emergency (CCPR/C/21/Rev.1/Add.11) of the UN Human Rights Committee C.     Revised European Social Charter D.     International Labour Organisation IV.     NOTICE OF DEROGATION BY TURKEY THE LAW I.     PRELIMINARY REMARKS A.     The Turkish derogation B.     The scope of the case II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A.     As to admissibility B.     Merits III.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A.     Admissibility B.     Merits IV.     THE OTHER ALLEGED VIOLATIONS OF THE CONVENTION V.     APPLICATION OF ARTICLE   41 OF THE CONVENTION A.   Damages B.   Costs and expenses C.   Default interest FOR THESE REASONS, THE COURT, CONCURRING OPINION OF JUDGE BOŠNJAK A.     Examination of the interference with the applicant’s right to respect for private life (Article 8 of the Convention) B.     Dismissal of the applicant’s claim in respect of pecuniary damage (Article 41 of the Convention) CONCURRING OPINION OF JUDGE koskelo PARTLY DISSENTING OPINION OF JUDGE YÜKSEL   In the case of Pişkin v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Aleš Pejchal,   Valeriu Griţco,   Branko Lubarda,   Pauliine Koskelo,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having regard to: the application (no.   33399/18) 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 Hamit Pişkin (“the applicant”), on 6 July 2018; the decision to give notice to the Turkish Government (“the Government”) of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the joint observations submitted by the organisations Amnesty International, the International Commission of Jurists and the Turkey Human Rights Litigation Support Project (“the intervening non-governmental organisations”), which were granted leave to intervene by the President of the Section Having deliberated in private on 17 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the dismissal of the applicant, an expert working in a public institute, following the declaration of a state of emergency in Turkey, as well as the subsequent judicial review of that measure. THE FACTS 2.     The applicant was born in 1982 and lives in Bingöl. He was represented by Mr I. Yılmaz, a lawyer practising in Bingöl. 3.     The Government were represented by their Agent.     THE PARTICULAR CIRCUMSTANCES OF THE CASE Background to the case 4.     On 20 December 2010 the applicant began working as an expert at the Ankara Development Agency ( Ankara Kalkınma Ajansı ; “the Ankara Agency”), on the basis of a permanent employment contract governed by the Labour Code (Law No.   4857). Established under Law No.   5449 of 25   January 2006, the Ankara Agency is a public-law entity responsible for coordinating the regional activities of public and private bodies. Its legal status is subject to private-law regulations. 5 .     The Government stated that development agencies such as the one in question are entities set up under Law No. 5449 with a view to promoting cooperation in the implementation of regional development policies at local level among the public sector, the private sector and non-governmental organisations. They explained that the agencies have access to extensive public resources in order to pursue that aim; they are public-law entities operating under the coordination of the Ministry of Industry and Technology; in that framework, using the funds and budget earmarked for the purposes of regional development, the agencies provide backing for development-oriented activities and projects. 6.     The Government added that the decision-making body of the Ankara Agency was its governing board, chaired by the Governor of Ankara, and that its secretariat general was its executive body. The governing board approved proposals presented by the secretariat general for supporting programmes, projects and activities, as well as the requisite assistance for individuals and institutions. 7.     The Government also explained that the Ankara Agency was a strategic institution in terms of both its power to determine regional development policies and its substantial budget (totalling 64,020,161.13   euros (EUR) for 2018); nonetheless, it was largely subject to private-law provisions; for that reason its employees were not civil servants and held employee status within the meaning of the Labour Code; at 31   December 2018 the Ankara Agency had been operating with a staff of 64   persons, including its secretary general and 28 experts like the applicant; the experts working in the Ankara Agency discharged important duties such as monitoring, assessing and supervising projects and activities supported by the Agency, as well as reporting on such activities. 8.     The Government added that the Ankara Agency signed employment contracts with its employees, that the latter’s duties were governed by the Labour Code, the provisions of the employment contract and the Regulations on Development Agencies, and that under the applicable legislation the governing board was responsible for recruitment and dismissal. The failed military coup of 15 July 2016 9.     During the night from 15 to 16 July 2016 a group of persons belonging to the Turkish armed forces launched a coup d’état aimed at overthrowing democratically elected Parliament, Government and President of the Republic. During that night of violence more than 250   individuals were killed and over 2,500   injured. 10.     On 20 July 2016 the Government declared a state of emergency for a three-month period starting on 21 July 2016. This state of emergency was subsequently extended every three months by the Council of Ministers chaired by the President. 11.     On 21 July 2016 the Turkish authorities notified to the Secretary General of the Council of Europe a derogation to the Convention in respect of Article   15. 12.     During the state of emergency the Council of Ministers, chaired by the President, enacted thirty-seven emergency legislative decrees (nos.   667 to 703) pursuant to Article 121 of the Constitution. Section 4 (1) (g) of one of those instruments, Legislative Decree No. 667, which was published in the Official Gazette on 23   July 2016, required all bodies answerable to a ministry to dismiss any staff considered as belonging, affiliated or linked to (“ üyeliǧi, mensubiyeti, iltisakı veya irtibatı ”) terrorist organisations or to organisations, structures or groups which the National Security Council had established as being involved in activities prejudicial to the State’s national security (those entitles are referred to hereafter as “illegal   structures”). 13.     The Government explained that Emergency Legislative Decree No.   667 had introduced a special procedure for the state of emergency facilitating the dismissal of individuals working in public institutions who were affiliated or linked with illegal structures. The Government stated that the main aim of that measure had been to protect the public institutions from the influence of such structures and to prevent the latter from using public resources and installations. They submitted that the aim of the procedure had been to combat terrorism effectively and to defend the principles of democracy. Termination of the applicant’s employment contract 14.     On 26 July 2016 the governing board of the Ankara Agency met to assess the situation of its employees. At the end of the meeting, the decision was taken to terminate the employment contracts of six persons, including the applicant, pursuant to section 4 (1) (g) of Emergency Legislative Decree No.   667, on account of their belonging to structures posing a threat to national security or of their affiliation or links with such structures. 15.     On 12 August 2016 the applicant was notified of the decision concerning the termination of his employment contract. The decision merely stated that the contract had been terminated pursuant to section 4   (1) (g) of Emergency Legislative Decree No.   667. 16.     The Government presented before the Court the declaration of termination of the applicant’s employment by the Ankara Agency as sent to the social security office. The section of the declaration concerning the reason for the termination of employment contained the reference code “22”, which the Government explained meant that the applicant had been dismissed for “other reasons”. The Government specified that in the document on the termination of employment the reasons for the termination of the relevant worker’s employment were indicated by choosing one of thirty-six possible codes. They added that the reference code “29”, for example, corresponded to “termination of employment by the employer on account of conduct on the employee’s part incompatible with the rules of morality and goodwill”. The applicant’s efforts to resume his duties 17.     On 14 August 2016 the applicant applied to the Ankara Labour Court (“the Labour Court”) to set aside the decision to terminate his contract. Before that court he argued, in particular, that his dismissal had not been based on any valid reason and had therefore been unfair and invalid. Moreover, he submitted that his employer had not complied with the dismissal procedure laid down in Article   19 of the Labour Code and Article   435 of the Code of Obligations. He argued that under the aforementioned provisions his employer should have given him written notice of termination of contract, clearly and specifically stating the grounds of dismissal. Lastly, he claimed compensation equivalent to four months’ salary. 18.     On 1 September 2016 the Labour Court decided to supplement the case file. It requested, in particular, documents concerning the applicant’s employment contract and other information on the termination of the latter (including the notice of termination of contract and any defence submissions by the applicant). 19.     On 4 October 2016 the applicant wrote to the Ankara Agency asking it to send him the reason for the termination of his employment contract. 20 .     On 5 October 2016 the applicant submitted a supplementary memorial to the Labour Court, reiterating his pleas concerning the lack of valid notification of his termination of employment. Furthermore, he challenged the lawfulness of the termination of his employment contract and submitted that he had been dismissed for no valid reason. As regards the provision relied upon to justify his dismissal, that is to say section 4   (1)   (g) of Emergency Legislative Decree No.   667, he categorically denied having any kind of link with the FETÖ/PDY (“Fetullahist Terrorist Organisation/Parallel State structure”), which the Turkish authorities considered as an armed terrorist organisation which had premediated the failed military coup. He also described it as a terrorist organisation, submitting that his employer had deliberately circumvented the applicable legal provisions in order to deprive him of the minimum procedural safeguards, such as accepting his defence submissions. He considered that his dismissal had amounted to a breach of his right to presumption of innocence in that it had been based on a subjective assessment that he had links with the terrorist organisation in question. In particular, he submitted that his employer had been unable to provide any explanation or criterion for considering him as someone linked to a terrorist organisation. In his view, the fact that the assessment in question had been left to the arbitrary discretion of the secretary general of the Ankara Agency showed that he had suffered an injustice. The applicant considered that in its observations in response (no copy of which was supplied to the Court by the parties), the Ankara Agency had claimed that it had not needed any evidence in order to make the assessment in question. The applicant stated that such an approach was contrary to his constitutional rights. He also pointed out the following: he had never met any of the members of the Agency’s governing board, and consequently the only administrative officer who could have made such an assessment was the secretary general; yet the latter would have required specific information in order to form his opinion; the fact was that there was no evidence – such as the fact of holding a bank account in the Asya Bank, membership of an association, a foundation, a trade union, or some kind of body affiliated to the structure in question, or again a subscription to certain publications – capable of justifying the assessment in question; that being the case, in the absence of any such evidence, the fact of making such an assessment could only be described as arbitrary and manifestly unfair. Finally, the applicant requested a hearing of the secretary general of the Ankara Agency and the gathering of the evidence on which the assessment in question had been based. 21.     By letter of 20 October 2016 the Ankara Agency informed the applicant that it was a public-law entity, even though it was subject to the rules of private law, and that its governing board, which had decided to terminate the contract in question, was competent to terminate employment contracts. 22.     On 25 October 2016 the Labour Court held a public hearing. On that occasion it heard two witnesses for the applicant. The first witness, S.A.E., said that he was not among the six employees dismissed. His statement might be summarised as follows: he had worked with the applicant for six years and had never noted any activities relating to the reasons given for the termination   of the applicant’s contract; he had no information on the reasons why the employer had made the assessment in question; he had never noted any links between the applicant and the FETÖ/PDY   terrorist organisation; and he did not believe that the applicant had any sympathies for the said illegal structure. The second witness, A.A., made the following statement: he had worked temporarily with the applicant for one-and-a-half years before going back to his own department in 2014; during his period of professional cooperation with the applicant he had never noted the latter’s involvement in activities suggesting an affiliation with the illegal structure in question; he had no information on how the governing board had reached the impugned assessment. 23 .     By judgment of the same day, the Labour Court dismissed the applicant’s request on the grounds that the termination of the employment contract had been lawful. In that regard, it held that that measure had been ordered by a competent body, namely the governing board of the Ankara Agency, pursuant to Article   4   (1) (g) of Emergency Legislative Decree No.   667, which had been enacted in the framework of the state of emergency following the failed military coup of 15   July 2016. The relevant parts of that judgment read as follows: “... The defendant employer is an agency ... set up under Law No.   5449. It is essential that ... persons with links to illegal organisations should not be employed in public institutions. It is undisputed that pursuant to Law No. 5449 the governing board of the [defendant] agency has power to terminate employment contracts .... At its meeting on 26 July 2016 the governing board ... decided to terminate the employment contracts of six persons, including the applicant, pursuant to section 4 (1) (g) of the emergency legislative decree .... The appeal must be rejected inasmuch as the termination of the employment contract [should be considered as] a valid termination on the grounds that it was ordered by the governing board of the defendant agency, which is competent in matters of termination of contract, under the provisions of Emergency Legislative Decree No. 667 adopted following the declaration of the state of emergency after the failed military coup perpetrated by the FETÖ/PDY organisation on 15 July 2016” (“ Davacının hizmet akdi 15/07/2016 tarihinde FETÖ/PDY örgütü tarafından meydana getirilen silahlı darbe kalkışması sonrasında ilan edilen olağanüstü hal kapsamında çıkarılan 667 sayılı KHK hükümlerine dayanılarak ve davalı ajansın feshe yetkili yönetim kurulunca fesih edilmekle, bu şekildeki fesihte KHK’ye göre geçerli bir fesih olmakla davanın reddine karar verilerek   ... ).” Even though the Government submitted that the Labour Court dismissed the applicant’s appeal on the grounds that “the termination of the applicant’s employment had been based on the provisions relating to termination with a valid reason ( geçerli neden ) as set out in Article 18 of the Labour Code [Law No.   4857]”, the Court observes that it transpires from that court’s judgment that it had not relied in its reasoning, even implicitly, on that provision of the Code. 24 .     On 23 November 2016 the applicant appealed to the Ankara Regional Court (“the Regional   Court”). Reiterating the arguments which he had put to the court of first instance, he complained, first of all, about the lack of reasoning in the judgment of 25 October 2016 delivered by the Labour Court, and secondly, submitted that his dismissal had been unfair and invalid because it had not been based on a valid reason. Moreover, he argued that his dismissal as ordered on the basis of Emergency Legislative Decree No.   667 was not only likely to damage his reputation but had also been arbitrary. He took the view that the impugned measure, which had been ordered on account of the alleged existence of links with a terrorist organisation, had been imposed on him in the absence of any conviction and was therefore incompatible with the presumption of innocence. 25 .     On 24 March 2017 the Regional Court dismissed the applicant’s appeal and upheld the judgment of 25 October 2016. The relevant parts of the Regional Court’s judgment read as follows: “... Having examined the dispute on the basis of the case file, our court must dismiss the appeal because it transpires from the parties’ submissions and the documents presented in support [of the latter] that the termination of the employment contract had been based on a valid reason ( geçerli neden ) [inasmuch as] the applicant’s contract had been terminated pursuant to Emergency Legislative Decree No.   667 issued following the failed military coup of 15 July 2016; section 4 of the Legislative Decree, headed ‘measures relating to civil servants’, provides as follows: persons ‘considered as belonging, affiliated or linked to terrorist organisations or to organisations, structures or groups whose involvement in activities prejudicial to the State’s national security had been established by the National Security Council’ will be excluded from the ‘civil service ... on the approval of the departmental director’ and will no longer be employed directly or indirectly in the civil service ...”. 26 .     On 21 April 2017 the applicant appealed on points of law. In his appeal, reiterating the arguments which he had put to the first- and second-instance courts, he submitted that the employment contract had been terminated arbitrarily and without any valid reason owing to an unfounded assessment by the secretary general of the Ankara Agency. Furthermore, he complained of the lack of reasoning of the judicial decisions given against him . 27.     By judgment of 15 June 2017 the Court of Cassation upheld the judgment of the Regional Court, considering that it had complied with the law and the relevant procedural rules. The applicant’s individual appeal 28 .     On 21 August 2017 the applicant lodged an individual appeal with the Constitutional Court contesting his dismissal. In his application form he first of all complained of a violation of his right to a fair trial. On that point he stated the following: –   the termination of his employment contract, which he considered had been ordered without any valid reason and on the basis of Emergency Legislative Decree No. 667, was incompatible with the “no punishment without law”   principle; –   administrative instruments adopted during the state of emergency should include measures valid only for the duration of the state of emergency; yet that had not been the situation in the present case. The applicant stated the following: “in the present case, the situation which I faced because of the personal opinion expressed by the secretary general [of the Ankara Agency] produced consequences which exceeded the framework of the state of emergency, and my situation involves an important and vital issue that affects my and my family’s life and will continue to affect it for a lifetime” (“ Bu somut olayda genel sekreterin şahsi kanaatiyle karşı karşıya kaldığım bu durum OHAL’le sınırlı bir işlem ve eylemden öte ömür boyu benim ve ailemin hayatını etkileyen önemli ve hayati bir konudur ”); –   the impugned measure infringed his right to a fair trial. In that regard, the applicant cited paragraphs 2 (presumption of innocence) and   3 (a) and (b) (rights of the defence) of Article 6 of the Convention. He submitted in particular that he had been dismissed without any opportunity to present defence submissions, and that he had at no stage benefited from an investigation into the “charges” against him. Moreover, he challenged the impartiality of Judge Y.T., a member of the Labour Court, because he had allegedly stated at the 25 October 2016 hearing that he had dismissed all similar appeals which he had had to adjudicate. Furthermore, the applicant affirmed that he had never been informed of the “charges” against him. Moreover, referring to Articles 48 (right to work) and 70 (right to enter the civil service and prohibition of discrimination in entering the civil service) of the Constitution, as well as to Article   1 § 2 of the European Social Charter, the applicant submitted that he had been totally and definitively prohibited from re-entering the civil service and that his right to work had therefore been violated. Lastly, the applicant explained that he had suffered negative discrimination in his attempts to find other employment on account of his dismissal as ordered in the wake of the failed military coup. He argued that he had suffered violations not only of his right to work but also of his and his family’s right to life, and complained in particular that his rights had been infringed. He specified that he had been branded a “traitor” and a “terrorist”, and that that situation was preventing him from continuing his life in society. 29 .     By decision of 10 May 2018 (no. 2017/32309), the Constitutional Court dismissed the applicant’s individual appeal. First of all, it reclassified the applicant’s complaints to examine them in the light of the right to a fair trial and the right to work. Secondly, it declared them inadmissible, those concerning the right to a fair trial as being manifestly ill-founded, and those concerning the right to work as being incompatible ratione materiae with the provisions of the Constitution. The Constitutional Court’s decision read as follows: “The appeal concerns an   allegation that the right to a fair trial and the right to work have been violated. Complaints concerning the [alleged] lack of reasoning and the right to have the requisite facilities and time for preparation of one’s defence in the framework of the right to a fair trial The appeal was examined in the framework of the jurisdiction of the Constitutional Court and in the light of the information and documents presented. It should be concluded that, manifestly, no violation of those rights could was found, taking the proceedings as a whole. Complaint concerning the right to proceedings complying with the fairness principle ( hakkaniyete uygun yargılanma ) in the framework of the right to a fair trial The allegations set out in the appeal concern the courts’ appraisal of the evidence and the interpretation of the rules of law; inasmuch as no manifest error of appreciation ( bariz takdir hatası ) or fact constituting an obvious instance of arbitrary action ( açık keyfilik oluşturan bir husus ) had been established, the allegations amounted to a ‘legal remedy category’ ( kanun yolu şikayeti [essentially corresponding to ‘fourth   instance’-type complaints]). Complaint concerning the right to work Pursuant to section 45 (1) of Law No. 6216 establishing the Constitutional Court and its rules of procedure, if an individual remedy is to be examined, the right [relied upon] ... must be protected by the Constitution and safeguarded by the European Convention on Human Rights and the Protocols thereto as ratified by Turkey. It follows that the right relied upon in the individual application does not fall within the ambit of the protection afforded by the Constitution and the Convention .... In the light of the foregoing considerations, the court decides to dismiss the complaints concerning a fair trial as manifestly ill-founded ... [and] the complaints concerning the right to work as being incompatible ratione materiae ...” Criminal investigation 30.     On 30 July 2016 the Ankara prosecutor’s office launched an investigation against 95 persons, including the applicant, on charges of belonging to an armed terrorist organisation. 31 .     On 5 September 2018 the Ankara prosecutor’s office gave a discontinuance decision in respect of the applicant and the other 94   persons concerned by the investigation on the grounds that there was insufficient evidence to justify the requisite suspicions in order to bring criminal proceedings. To that end it noted, inter alia , that the concerned persons had been neither users of the ByLock communication application nor members or leaders of associations or societies suspected of supporting the criminal organisation in question, and that they did not hold bank accounts with the Bank Asya.     RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE The Turkish Constitution 32.     The relevant provisions of the Turkish Constitution as in force at the material time read as follows: Article 15 “In times of war, mobilisation, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating from the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated. Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.” Article 120: Declaration of a State of Emergency on Account of Widespread Acts of Violence and Serious Deterioration of Public Order “In the event of the emergence of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairmanship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.” Article 121: Rules Relating to the States of Emergency “In the event of a declaration of a state of emergency under the provisions of Articles   119 and 120 of the Constitution this decision shall be published in the Official Gazette and shall be submitted immediately to the Turkish Grand National Assembly for approval. If the Turkish Grand National Assembly is in recess, it shall be summoned immediately. The Assembly may alter the duration of the state of emergency, extend the period for a maximum of four months each time at the request of the Council of Ministers, or may lift the state of emergency. The financial, material, and labour obligations which are to be imposed on citizens in the event of the declaration of state of emergency under Article 119, and, applicable according to the nature of each kind of state of emergency, the procedures as to how fundamental rights and freedoms shall be restricted or suspended in line with the principles of Article 15, how and by what means the measures necessitated by the situation shall be taken, what sort of powers shall be conferred on public servants, what kind of changes shall be made in the status of officials, and the procedure governing emergency rule shall be regulated by the Law on State of Emergency. During the state of emergency, the Council of Ministers, meeting under the chairmanship of the President, may issue decrees having force of law on matters necessitated by the state of emergency. These decrees shall be published in the Official Gazette, and shall be submitted to the Turkish Grand National Assembly on the same day for approval; the time limit and procedure for their approval by the Assembly shall be indicated in the Rules of Procedure.” Emergency Legislative Decree No. 667 (Law No. 6749) 33.     The relevant parts of Emergency Legislative Decree No.   667, which came into force on 23 July 2016, read as follows: Article 4 (1)     Persons considered as belonging, affiliated or linked to terrorist organisations or structures, formations or groups which the National Security Council has determined are involved in activities prejudicial to the national security of the State ( Terör örgütlerine veya Milli Güvenlik Kurulunca Devletin milli güvenliğine karşı faaliyette bulunduğuna karar verilen yapı, oluşum veya gruplara üyeliği, mensubiyeti veya iltisakı yahut bunlarla irtibatı olduğu değerlendirilen ): ... (g)     personnel employed in all kinds of posts, positions and status (including workers) in institutions affiliated or related to a ministry, are dismissed from the civil service upon the proposal of the head of unit, with the approval of the director of the recruitment department ( Bir bakanlığa bağlı, ilgili veya ilişkili diğer kurumlarda her türlü kadro, pozisyon ve statüde (işçi dahil) istihdam edilen personel, birim amirinin teklifi üzerine atamaya yetkili amirin onayıyla kamu görevinden çıkarılır .) ... (2)     Persons dismissed in accordance with the first paragraph cannot be employed in the civil service again, and may not be assigned such duties either directly or indirectly ....” ( Birinci fıkra uyarınca görevine son verilenler bir daha kamu hizmetinde istihdam edilemez, doğrudan veya dolaylı olarak görevlendirilemezler ...) Under Law No. 6749 enacted on 18 October 2016 and published in the Official Gazette on 29 October 2016, Legislative Decree No.   667 was approved by the National Assembly, thus becoming law. Legal regulations on employment contracts and the Labour Code Legal regulations governing employment contracts 34.     The legal status of employment contracts is governed by the Labour Code (Law No. 4857 of 22 May 2003). The provisions of the Civil Servants Law (Law No. 657) are inapplicable to employees, including those working in public institutions. 35.     The Labour Code provides essentially for two modes of termination of employment contracts by the employer: termination with a valid reason ( geçerli nedenle fesih ) and termination with a just reason ( haklı nedenle fesih ). Termination with a valid reason, commonly known as “valid   termination” ( geçerli fesih ), is governed by Articles   17-21 of the Labour Code. It is subject to specific formal requirements: issuing notice of termination in writing, stating the reasons for the dismissal in clear and precise language and gathering the observations of the employee in question concerning the reason given (section 19 (1) and (2) of the aforementioned law). Furthermore, in cases of valid termination, the employer is required to grant the employee severance pay and a length-of-service indemnity ( kıdem ve ihbar tazminatı ). Termination with a just reason, commonly known as “just termination” ( haklı fesih ), is governed by section 25 of the aforementioned law. While a person cannot be dismissed for a valid reason without asking the employee to submit his observations in defence, recourse by the employer to termination of contract in accordance with the conditions set out in section   25 (II) is not subject to that requirement (section   19 (2) of the aforementioned law). In order to explain the differences between the two modes of contract termination, the Government referred to a leading judgment adopted by the plenary assembly of the civil chambers of the Court of Cassation on 12 April 2017 (E.2014/7-2461, K.2017/719). The relevant parts of that judgment read as follows: “... Termination with a just reason and termination with a valid reason are regulated separately in Law No. 4857, and the reasons used for the two types of termination are different .... The valid reason is set out in section 18 of Law No. 4857, and even though such reason is not as serious as a just reason, a valid reason is based on the employee’s conduct, lack of competence or corporate requirement. Unlike termination with a valid reason, termination with a just reason is set forth in separate terms for the employee and the employer: section   24 of Law No. 4857 regulates the employee’s right to terminate [the contract] immediately for a just reason, while section 25 of that Law deals with the employer’s right to terminate the employment contract immediately for a just reason. Contrary to [the case of] valid termination, the cases in which contracts can be terminated for a just reason are individually listed in the aforementioned provisions. Moreover, although the employer is not required to grant the employee severance pay and a length-of-service indemnity in the event of termination of employment with a just reason, the employee is entitled to severance pay and a length-of-service indemnity in cases of termination of employment with a valid reason”. 36.     According to the Government, an action seeking re-entry into previous employment is a declaratory action ( tespit davası ) capable of establishing the contract termination regime (valid reason or just reason). Thus in practice the amounts payable in respect of severance pay and length-of-service indemnity could be claimed by means of separate proceedings before the Labour Court. The Labour Code 37 .     The relevant provisions of the Labour Code read as follows: Article 1: Purpose and scope “The purpose of this Law is to regulate the working conditions and work-related rights and obligations of employers and employees working under an employment contract. With the exception of those cited in Article 4, this Law shall apply to all the establishmen