The ECHR decision of December 15, 2020 in the case "Piskin v. Turkey" (aplication No. 33399/18).
In 2018, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to Turkey.
In the case, an aplication was successfully considered for improper consideration by the court of the issue of dismissal of an employee of a state authority on the basis of a regulatory act on a state of emergency in connection with the alleged links of the dismissed person with a terrorist organization. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was dismissed from the position of an expert in the Office of the Ankara Cooperation Agency (Ankara Kalkinma Ajansi) (hereinafter referred to as the Agency) on the basis of Decree on the State of Emergency No. 667 (hereinafter referred to as the Decree). The applicant was dismissed due to his alleged links with a terrorist organization, which, according to the Turkish authorities, provoked a military coup on July 15, 2016.
The applicant appealed the fact of his dismissal, as well as the subsequent court proceedings.
Regarding compliance with article 6, paragraph 1, of the Convention. Article 6 of the Convention is applicable to the present case in its civil law, and not in its criminal law aspect.
(a) The procedure concerning the termination of the employment contract. The applicant's employment contract was terminated at the initiative of the employer, who referred to the Decree, and not to the provisions of the Labor Code regulating the termination of the employment contract for valid reasons, as a result of which certain procedural requirements were not met in the present case. The decree authorized the dismissal of State civil servants and persons working in State authorities for hire, according to a simplified procedure that did not require an adversarial process and did not provide any special procedural guarantees. It was enough for the employer to assume that his employee belonged to, was affiliated with or associated with one of the prohibited organizations mentioned in the Decree, without having to give at least some personalized arguments.
(b) Judicial review. (i) The limits of consideration of the case. The only option for the applicant's actions was to apply to the Turkish courts with a request to provide him with information about facts or other evidence that could confirm the opinion of his employer, so that the applicant could appeal against the probability, reliability and reliability of the mentioned evidence. Consequently, the Turkish courts were obliged to consider all the factual and legal issues related to the case referred to them in order to ensure that the applicant had an effective trial concerning the decision of his employer.
(ii) Characteristics of the trial. There was nothing in the case file to indicate that the decision-making process by the Turkish courts would not meet the requirements of the adversarial process and the principle of equality of the parties.
(iii) Reasons for court decisions. The Turkish courts rejected the applicant's complaint on the grounds that the termination of his contract was considered lawful under the above-mentioned Decree, and the courts did not consider the issue of "termination of the contract for a valid reason" within the meaning of the Turkish Labor Code.
In addition, the domestic courts considered only the question of whether the decision to dismiss the applicant was taken by the competent authority and whether the decision appealed by the applicant was based on the law. The relevant Turkish courts have never attempted to establish whether the termination of the employment contract with the applicant because of his alleged links with an illegal organization was justified by the applicant's behavior or other relevant evidence or information. Moreover, the grounds of the applicant's complaint were not properly considered by the Turkish courts. The fact that the Constitutional Court of Turkey issued a brief decision on the inadmissibility of the complaint proved that this court did not analyze legal and legal issues.
The findings of the Turkish courts demonstrated that the domestic courts did not conduct any in-depth, thorough examination of the applicant's complaints, that they did not base their conclusions on the evidence presented by the applicant and that they did not give valid reasons for rejecting the applicant's arguments. The shortcomings noted put the applicant at a clear disadvantage vis-a-vis to his opponents.
(c) Output. Despite the fact that, theoretically, the Turkish courts had full jurisdiction to resolve the dispute between the applicant and the State authorities, they refused to consider all the factual and legal issues related to the case submitted to them for consideration. Consequently, the Turkish courts did not properly listen to the applicant, which violated his right to a fair trial.
With regard to article 15 of the Convention, even if the procedures provided for by the Decree could be considered justified in view of the extremely specific circumstances of the state of emergency, the said Decree did not limit the possibility of conducting judicial proceedings after the termination of the employment contracts of the persons concerned. Taking into account the importance of the issues raised for the convention rights of the plaintiffs, if the Decree on the State of Emergency does not contain clear and precise provisions that exclude any possibility of judicial review of the measures taken for the purpose of its execution, this situation should always be interpreted as giving the courts of the respondent State the right to conduct proceedings of such quality that is sufficient to avoid arbitrariness against the interested persons. In the circumstances of the present case, the failure to comply with the requirements related to a fair trial could not be justified by the departure of the Turkish authorities from fulfilling their obligations under the Convention.
The case involved a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
Regarding compliance with article 8 of the Convention. (a) Applicability. In the present case, there was no evidence to suggest that the termination of the employment contract would have been a foreseeable result of the applicant's own actions. The applicant has lost his job, that is, a source of income for obtaining a livelihood. The Court particularly noted the applicant's argument that he was called a "terrorist" in society and thus "branded": none of the other employers dared to offer the applicant a job, since the applicant was dismissed on the basis of a decree. Consequently, there were real consequences for the applicant's ability to establish and maintain relationships, including professional ones, as well as serious negative consequences for his professional and social reputation. Consequently, article 8 of the Convention is applicable to the present case.
(b) The substance of the complaint. The decision to terminate the employment contract with the applicant was made not by a State authority, but by a local subdivision of the Agency. Despite its status as a public legal organization, the Agency did not exercise any authority. In addition, although the employment contract with the applicant was regulated by the Turkish Labour Code, he was dismissed on the basis of article 4, paragraph 1 (g), of the Decree, which required the employer to terminate employment relations with employees who were suspected of having links with illegal organizations. Thus, the dismissal in the present case could be considered as an obligation provided for by the Decree, far beyond the legal framework regulating the employment relations of the applicant and his employer. Moreover, the Turkish authorities would be liable if the facts complained of were the result of the authorities ' failure to guarantee the applicant's exercise of his right under article 8 of the Convention. Under such conditions, the dismissal of the applicant on the grounds of his alleged links with an illegal organization could be considered as an interference with his right to respect for private life. The intervention was provided for by law and pursued several legitimate goals, namely the protection of national security and the prevention of riots and crimes.
As for the question of whether the decision-making process to dismiss the applicant was accompanied by guarantees against arbitrariness, the mentioned process was conducted very superficially. The only reason for the decision was a reference to the provisions of subparagraph " g " of paragraph 1 of Article 4 of the Decree concerning the dismissal of employees who are considered to belong to, affiliated with or associated with an illegal organization. Also, during the consideration of the case, the applicant was never explicitly charged.
In the present case, considerations regarding the duty of loyalty of a public official were applicable, mutatis mutandis, taking into account the purpose of the work of the Agencies. Following its conclusions set out above regarding Article 6 of the Convention, the European Court agreed that the simplified procedure for the dismissal of State officials and other civil service employees introduced by the Decree could be considered justified taking into account the extremely specific circumstances that developed in the country after the military coup attempt on July 15, 2016, taking into account the fact that the measures taken under the state of emergency were subject to judicial control.
As for the thoroughness of the judicial review of the contested measure, the European Court was ready to agree that membership in structures organized according to the military model or establishing rigid and unbreakable ties of solidarity between their members, or otherwise following an ideology contrary to the rules of democracy, which are the main component of the "European public order", could affect the problem related to national security and the prevention of unrest, if the members of these structures had to perform public-legal functions.
Therefore, it is naturally important for state authorities or other bodies in the field of state civil service to identify potential threats to national security. However, domestic courts should be able to apply punishment in cases where the reference to the mentioned concept is not based reasonably on the facts or indicates an arbitrary interpretation of the situation.
In the present case, the European Court was not in a position to decide on the arguments of the Turkish authorities about the reasons for the applicant's dismissal. Indeed, even if the applicant's dismissal was based on his alleged links with an illegal organization, the decisions of the Turkish courts did not clarify what criteria were used to justify the assessment of the situation by the applicant's employer and to determine the exact nature of the charges against the applicant. The Turkish courts recognized, without conducting an in-depth study of the contested measure, which nevertheless had important consequences for the applicant's right to respect for his private life, that the mentioned assessment was a valid reason for the decision to terminate the employment relationship with the applicant. Thus, the Turkish courts did not indicate any real reasons for the termination of the employment contract with the applicant. Consequently, the judicial review of the application of the appealed measure was not appropriate in the present case.
The arguments presented by the Turkish authorities were relevant to the case, but were not sufficient to demonstrate that the alleged interference was "necessary in a democratic society". In particular, the applicant was not provided with the required minimum level of protection against arbitrariness.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 4,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.