ECHR judgment of November 27, 2018 in the case of Urat (Urat) v. Turkey (applications No. 53561/09 and 13952/11).
In 2009 and 2011, complainants were assisted in preparing applications. Subsequently, the applications were merged and communicated to Turkey.
The case successfully reviewed the applications of the applicants for their dismissal from the post of teachers of a general education institution in connection with their detention on suspicion of membership in an organization prohibited by law, despite the fact that the criminal case against the applicants was terminated due to the expiration of the criminal liability period. The case did not violate the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the first applicant. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the second applicant.
THE CIRCUMSTANCES OF THE CASE
The applicants, two brothers, were detained on suspicion of membership in the illegal organization Hezbollah. The criminal case against them was discontinued due to the expiration of the five-year criminal prosecution term. As a result of the disciplinary proceedings, the applicants were dismissed from the position of elementary school teachers. Subsequently, the decisions on their dismissal were upheld by the administrative courts.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 2 of Article 6 of the Convention. (a) Applicability. The protection provided by the presumption of innocence has two aspects: first, procedural, related to actions during the criminal proceedings, and second, the purpose of which is to ensure the validity of the innocence conclusion of a person in subsequent processes. However, there is no general approach to determining the circumstances under which the second aspect of Article 6 § 2 of the Convention will be violated. Much depends on the nature and context of the process during which the controversial decision was made. However, in any case, the language used by the decision-making body is crucial for assessing the compatibility of the decision and its reasoning with the requirements of paragraph 2 of Article 6 of the Convention.
Criminal proceedings and disciplinary proceedings were simultaneously initiated against the applicants, and decisions to dismiss them were taken when the criminal case against them was not yet terminated. Although both aspects of Article 6 § 2 of the Convention remained applicable during the entire period when criminal and disciplinary proceedings continued in parallel, given the fact that the decisions of the administrative courts to leave the decisions on dismissal in force were taken after the decisions on criminal cases against the applicants, aspect in their affairs was dominant.
The fact that the two types of proceedings continued in parallel does not automatically mean that Article 6 § 2 of the Convention was used in the disciplinary procedure, it was necessary to establish a link between the two types of proceedings in order to justify the extension of the principle of presumption of innocence to disciplinary proceedings. The parties did not dispute the fact that the applicants' dismissal was directly related to the events in connection with which criminal proceedings were instituted. The circumstances that the disciplinary bodies and administrative courts familiarized with the criminal case and largely based their decisions on its materials were sufficient for the European Court to conclude that there is a strong link between the criminal and disciplinary proceedings.
RESOLUTION
Clause 2 of Article 6 of the Convention is applicable in the present case (adopted unanimously).
(b) The merits of the complaint. In cases involving disciplinary proceedings, the fact that the applicant was convicted of a disciplinary offense on the basis of the same circumstances as in the previous criminal proceedings, which did not lead to conviction, does not automatically indicate a violation of Article 6 § 2 of the Convention. Disciplinary bodies were authorized and had the opportunity to carry out independent fact-finding in the cases they considered, but the elements of the elements of the crime and the disciplinary violation were not the same. In this regard, neither the purpose nor the effect of the provisions of paragraph 2 of Article 6 of the Convention did not obstruct the bodies vested with disciplinary powers from imposing punishments for the actions that the person was charged with during the criminal proceedings, if the person’s misconduct was proved to be correct. The Convention does not prohibit prosecution for the same actions in both criminal and disciplinary proceedings or their simultaneous consideration. Even exemption from criminal liability as such did not prevent the person from being brought to civil or other forms of liability on the basis of the same facts in the context of a less strict standard of proof. However, in the absence of a conviction in a criminal case, if a disciplinary decision contains allegations that the applicant is charged with criminal responsibility for a violation in which he was accused in disciplinary proceedings, this raises questions from the point of view of Article 6 § 2 of the Convention.
(i) The first applicant. In its controversial decision, the administrative court began with a brief statement of the factual and legal circumstances that served as the basis for the dismissal of the first applicant. The Administrative Court noted that the first applicant’s dismissal from the civil service was recommended because he was considered a member of Hezbollah, which is recognized as terrorist. When presenting the reasons for his decision, the administrative court indicated that the first applicant had committed a disciplinary violation when he provided this organization with information about his identity and attended meetings and lessons organized by her, and that these actions fell under the concept of “violation of peace, tranquility and working order of the institution in ideological and political purposes."
The first part of the decision of the administrative court contained only a statement of the factual and legal circumstances of the case, it did not express the opinion or the allegation that the first applicant was guilty of such a crime as membership in an illegal organization. The second part, which contained a reminder of the principle that exemption from criminal liability does not exclude the conclusion that there is a disciplinary offense, also did not raise questions from the point of view of Article 6 § 2 of the Convention. The Court had to determine whether the last sentence, in which the administrative court decided to bring the first applicant to disciplinary responsibility on the basis of the facts to be proved, namely, that he provided the organization with personal information and attended organized last meetings and lessons, attributed the first applicant guilt in the crime. The Court has concluded that the expressions used in this statement cannot be equated to the conclusion that criminal liability is imposed for the acts in which the first applicant was accused in a criminal case. The meaning of the controversial statement was not that the first applicant was a member of a terrorist organization, of which he was accused in a criminal case, but only that he provided the organization with information about his identity and attended meetings and lessons organized by her, which was recognized administrative court sufficient fact to bring him to disciplinary responsibility. For this reason, the language used by the administrative court in substantiating its conclusion about the disciplinary responsibility of the first applicant did not violate the presumption of innocence.
RESOLUTION
The case did not violate the requirements of Article 6 of the Convention in respect of the first applicant (adopted unanimously).
(ii) The second applicant. When setting out the motives for his ruling, the Turkish court indicated that some of the materials in the criminal case confirmed that the second applicant was a member of the Hezbollah terrorist organization. According to the Court, this statement itself was an unequivocal statement about the second applicant's criminal responsibility and violated the latter’s right to no doubt of his innocence towards the prosecution, the criminal case for which was discontinued.
RESOLUTION
The case was breached in Article 6 of the Convention in respect of the second applicant (adopted unanimously).
The European Court, by six votes in favor, with one, “against,” concluded that the case did not violate the requirements of Article 6 § 1 of the Convention, since the reasoning of the court decision in the first applicant’s case was not arbitrary or manifestly unreasonable and was not a refusal justice.
In application of Article 41 of the Convention. The Court awarded the second applicant EUR 6,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.