CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 février 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 17 February 2017   SECOND SECTION Application no. 48997/09 Sezai ORAK against Turkey lodged on 28 July 2009 STATEMENT OF FACTS 1.     The applicant, Mr Sezai Orak, is a Turkish national, who was born in 1975 and is currently serving a life sentence in Kahramanmaraş prison. He is represented before the Court by Mr H. Taş and Mr V. Taş, lawyers practising in Elazig. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows. 1.     Criminal proceedings against the applicant 3.     On 8 February 2000, the applicant, a high school teacher in Mardin, was arrested and taken into police custody on suspicion of being a member of Hizbullah, a proscribed organisation in Turkey. 4.     On 8 March 2000 criminal proceedings against him were started before the Diyarbakır State Security Court. The applicant was remanded in custody during the entire course of the criminal proceedings. 5.     It appears that on 23 March 2004 the Diyarbakır State Security Court delivered its judgment in the case and convicted the applicant of attempting to undermine the constitutional order by force and sentenced him to imprisonment and banned him from public service for life. The applicant has not provided the Court with a copy of the relevant judgment of the Diyarbakır State Security Court. 6.     By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30   June 2004, State Security Courts were abolished. Therefore, the Diyarbakır Assize Court acquired jurisdiction over the case. 7.     On unspecified dates the proceedings against the applicant were joined with several other cases against the applicant and co-accused which had a common factual and legal background. 8.     On 19 October 2007 the Diyarbakır Assize Court delivered its judgment and convicted the applicant of membership of an outlawed organisation, Hizbullah, and for his involvement in taking part in the murders of two persons and injuring two others as well as for his involvement in activities attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code, and sentenced him to life imprisonment. It acquitted the applicant of injuring two persons and the murder of one individual for lack of proof. This judgment became final on appeal on 16   May 2008. 2.     Disciplinary proceedings against the applicant 9.     On 10 January 2001, while the criminal proceedings against the applicant were still pending, the Supreme Disciplinary Board of the Ministry of Education dismissed the applicant from public service pursuant to section   125 § E (a) of the Public Service Act (Law no. 657). The relevant parts of the decision read: “... The acts attributed to the applicant: Membership, aiding and abetting and participating in the activities of the illegal terrorist organisation Hizbullah ... On the basis of the examination of the information and documents in the case-file, the veracity of the acts attributed to the applicant and their continuous nature have been established. Having regard to the importance of the post of a teacher, the characteristic and the gravity of the offence, it has not been deemed appropriate to impose a lighter penalty. Based on the following considerations, the recommendation for the applicant’s dismissal was accepted unanimously ...” 10.     On an unspecified date in 2001 the applicant challenged his dismissal by bringing a case against the Ministry of Education and requested the stay of execution of his dismissal on account of the fact that the criminal proceedings against him were still pending before the criminal courts. 11.     On 14 September 2001 the Diyarbakır Administrative Court rejected the request for the stay of execution on the grounds that it did not meet the requirements provided for by law. 12.     Relying on the fact that the criminal proceedings concerning the same accusations were still pending against him, the applicant challenged the decision of 14 September 2001 before the Regional Administrative Court. 13.     On 26 October 2001, having regard to the fact that the applicant was dismissed on account of his alleged membership of a terrorist organisation, the Regional Administrative Court granted the applicant’s request for stay of the dismissal decision and concluded that only the competent criminal court could establish his criminal responsibility. In that respect, it held that the applicant was charged with a criminal – and not a disciplinary – offence, the determination of which could only be made by a competent criminal court. It therefore held that the applicant could not be dismissed from public service on account of membership of a terrorist organisation in the absence of a final conviction. However, having regard to the fact that he was remanded in custody, the court noted in passing that he could be suspended from public service pending the final judgment in the criminal proceedings. It therefore held that the applicable measure in the applicant’s case would be that in Section 141 of the Public Service Act. 14.     Pursuant to the Regional Administrative Court’s decision of 26   October 2001, the applicant’s dismissal was stayed and his employment with the Ministry of Education was suspended. During the period of the applicant’s suspension from public service, he was paid two-thirds of his salary as was provided for by Section 141 of the Public Service Act. 15.     On 21 September 2004, having regard to the fact that the State Security Court had delivered its judgment against the applicant on 23   March 2004 and convicted him on account of membership of Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force, the Diyarbakır Administrative Court unanimously rejected the applicant’s request for the decision dismissing him from his post to be quashed. The relevant parts of the judgment read: “While the applicant was working as a teacher, he was charged with membership of a terrorist organisation ... [he] was arrested and remanded ... Based on identical charges, a disciplinary investigation was started against the applicant. The disciplinary investigation had regard to the applicant’s testimony at the police station and at the public prosecutor’s office as well as to the fact that the applicant had given his résumé to the organisation. It concluded that the applicant had committed the acts attributed to him in that the applicant took part in the military wing of the organisation where he recruited new members, acted as a messenger and taught its ideologies. Based on the findings of that report, the applicant’s defence was requested, however it was not found convincing. For this reason the Supreme Disciplinary Board recommended the applicant’s dismissal from public service on the basis of its consideration that the applicant’s acts corresponded to the disciplinary offence of ‘disrupting the work discipline and harmony’ within the meaning of Section 125 § E (a) of the Public Service Act. Having regard to the investigation and case-file before it, the court concludes that the applicant disrupted the work discipline and harmony for ideological purposes. Bearing in mind the importance of the post of teaching [the court deems that] it would prejudice the public interest to keep the applicant employed in the civil service. During the course of examination of the present case, the court has also requested the judgment of the Diyarbakır State Security Court. The court notes that the applicant was convicted of attempting to undermine the constitutional order by force and was sentenced to imprisonment and to a permanent prohibition on taking up employment in the public service. That being said, it is an established principle of case law that exoneration from criminal liability does not preclude the finding of a disciplinary offence. It follows that the veracity of the [allegations concerning] applicant’s acts punishable by a disciplinary sentence needs to be ascertained. The court finds that the decision to dismiss the applicant based on Section 125 §   E   (a) of the Public Service Act was in accordance with law in so far as the veracity of the acts attributed to the applicant were clearly established and that the applicant disrupted the work harmony and discipline for ideological purposes.” 16.     The applicant appealed against the judgment of the Diyarbakır Administrative Court before the Supreme Administrative Court and requested the stay of the decision which called for his dismissal from service. It appears that the Supreme Administrative Court adjourned its hearing for the request for stay of the dismissal decision. However, in any case it rejected the applicant’s appeal request on 11 June 2007. 17.     The applicant’s request for the rectification of the decision of 11   June 2007 was subsequently dismissed by the Supreme Administrative Court on 14 April 2009, which held that none of the reasons put forth by the applicant for rectification fell within the exhaustive list of permissible grounds for rectification indicated in the relevant provisions of the Administrative Procedure Act (Law no. 2577). B.     Relevant domestic law 18.     Section 125 § E of the Public Service Act (Law no. 657 of 14 July 1965), in so far as relevant, provides as follows: “E. ... The following acts and conduct entail dismissal from the public service: (a)   Disrupting the work discipline and harmony for ideological and political purposes; participating, provoking, encouraging or otherwise aiding and abetting acts including boycotts, occupations, obstructions, slowdowns and strikes or being collectively absent from work;” 19.     Section 141 of the Section 125 § E of the Public Service Act (Law no.   657 of 14 July 1965), in so far as relevant, provides as follows: “The civil servant who is suspended from public service or who is arrested or taken into police custody is entitled to two-thirds of his salary and the social benefits regardless of whether the offence of which he is accused is related to his functions as a civil servant ...” COMPLAINT The applicant complains under Article 6 § 2 of the Convention that his dismissal from public service while the criminal proceedings against him were pending concerning identical charges violated his right to the presumption of innocence.       QUESTION TO THE PARTIES Having regard to the reasoning and wording of the Supreme Disciplinary Council’s dismissal decision of 10 January 2001 and the judgment of the Diyarbakır Administrative Court upholding that decision, was the applicant’s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the disciplinary proceedings, which found it established that the applicant was a member of a terrorist organisation, despite the fact that the criminal proceedings against the applicant on the charges of membership of a terrorist organisation were still pending before a criminal court, contravene the applicant’s right to presumption of innocence?   The Government are requested to submit a copy of the disciplinary investigation file in support of their reply, as well as any other documents pertaining to the administrative as well as the criminal proceedings that they deem relevant for the examination of the case.   The parties are requested to submit a copy of the judgment of the Diyarbakır State Security Court of 23 April 2004 and the decision delivered by the Court of Cassation on appeal.