The ECHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human R Сведения: 2019-02-22 06:02:58

ECHR case ruling of June 19, 2018 in the Kula v. Turkey (application No. 20233/06).

In 2006, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Turkey.

The case was successfully considered an application about the shortcomings in the court’s consideration of the question of punishment applied to the researcher after his unauthorized participation in a television program. The case was a violation of Article 10 of the Convention.


THE CIRCUMSTANCES OF THE CASE


The applicant was a professor, a specialist in German language. He taught German at a provincial university. The applicant was invited to speak on a television program filmed in Istanbul and notified the applicant’s management of this. However, the head of the department where the applicant worked, expressed doubts about the relationship between the applicant’s specialty and the subject of the television program: “The cultural structure of the European Union and the traditional structure of Turkey - comparison of personalities and behaviors - probable problems and proposed solutions”, therefore the dean of the faculty considered that the applicant’s participation in the program was inappropriate. Having received notification of this decision, the applicant nonetheless took part in this television program. Two weeks later, immediately after the colloquium in Istanbul, which he was allowed to attend, the applicant again took part in the same program, this time without prior notification of his leadership at the university.

The deputy rector of the university reprimanded the applicant because of his actions. The Disciplinary Commission noted that even if it was a professor in the field of scientific research, participation in such television programs should have been controlled to some extent. A disciplinary offense used as a formal basis for applying an administrative penalty (reprimand) to the applicant constituted a violation of the statutory prohibition to leave the “city of residence” without the permission of the management.


QUESTIONS OF LAW


Regarding compliance with Article 10 of the Convention. (a) Interference with freedom of expression. The entire set of factors convinced the European Court that, apart from formal grounds, the real reason for the application of the punishment to the applicant was his unauthorized participation in the television program referred to in the case. Neither the applicant nor the university management has ever considered the incident from the point of view that the applicant “left” the city of his residence.

Therefore, the main issue in the present case is the use by the applicant of the right to freedom of expression as a researcher. This question undoubtedly concerned the freedom of the applicant as a scientist, which extended to freedom of expression and freedom of action, freedom to transmit information and the freedom to "conduct research and spread knowledge and truth without restriction." The punishment applied, no matter how insignificant, could have affected the applicant’s exercise of his freedom of expression and even forced the applicant to restrict his use of this freedom.

(b) Justification of the intervention. For the reasons stated below, the European Court acknowledged that, although the interference was provided by law, it did not have the necessary guarantees to be considered “necessary in a democratic society”, which allowed the European Court not to consider whether the interference had a legitimate aim.

The case concerned both ex post facto disciplinary action (for unauthorized participation in a television program outside the applicant's city of residence) and a previous ban (refusal of a request for permission to participate in the first television program).

Ex post facto (lat.) - after the fact, the action (of the law) with retroactive effect.

In none of the cases was it ever explained why the applicant’s participation in the television program was inappropriate.

During the submission of the request for permission to participate in the first television program, the dean of the faculty did not explain the reasons for his refusal, and in a subsequent letter in response to the applicant's request for explanations, the dean simply referred to the concerns of the head of the translation department regarding the degree of awareness of the subject matter.

When disciplinary punishment was applied, the only explanation was a general reference to the relevant legal norms (regarding the unauthorized departure of the applicant from the city of residence) without additional information about the valid grounds for the punishment.

In their decisions, the university management never mentioned, for example, that the unauthorized departure of the applicant would disrupt the work of the departments of the state university or that the applicant would neglect his duties to participate in a television program, or that, taking part in a television program, the applicant did or said something that harmed the reputation of the university.

Furthermore, subsequent court decisions did not have “relevant and sufficient grounds” to establish whether the application of punishment to the applicant was necessary in the circumstances of the case in order to achieve the stated goal, even though the applicant explicitly referred to his academic freedom.

The administrative court and the Supreme Administrative Court (which left the decision of the court of first instance unchanged) would have to implement, as they actually could do according to the national norms on the procedure applicable to administrative complaints, a broader assessment than to limit themselves to a formal consideration of the legality of the parties' actions. in accordance with the disciplinary regulations referred to by the university management.

In the present case, the court decisions did not demonstrate how the domestic courts fulfilled their task of balancing, on the one hand, competing interests and, on the other hand, preventing the university’s ultra vires actions. Similar deficiencies also prevented the Court from effectively conducting its own thorough review.

Ultra vires (lat.) - beyond the scope of competence, with the excess of powers.


RESOLUTION


The case was a violation of Article 10 of the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. The Court awarded the applicant EUR 1,500 in respect of non-pecuniary damage.

 

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