AS TO THE ADMISSIBILITY OF
Application No. 31117/96
by Mehmet AGKO
against Greece
The European Commission of Human Rights sitting in private on
20 October 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 April 1996 by
Mehmet AGKO against Greece and registered on 23 April 1996 under file
No. 31117/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1949. He resides in
Xanthi, Greece. In the proceedings before the Commission he is
represented by Mr. O. Haciibram, a lawyer practising in Xanthi.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, who considers himself a member of the Turkish
Muslim minority of Thrace, is a graduate of the Special Academy for
Teachers (Idiki Pedagoyiki Akadimia) of Thessaloniki. He used to work
as a teacher in one of the minority schools in the Prefecture of
Xanthi. His conditions of employment were not different from those of
other civil servants.
On 6 March 1994 the Union of Turkish Teachers of Western Thrace
issued a statement to express its disagreement with ministerial
decision No. Z2/219/24-5-1993 concerning the procedure for the hiring
of Muslim teachers on a temporary basis with private-law contracts. On
21 March 1994 the Executive Committee of the Union called on the
teachers and pupils of the minority schools not to attend school
between 28 March 1994 and 2 April 1994. The Committee claimed that it
had the support of a number of Turkish minority organisations.
On 28 March 1994 the applicant made a declaration to the Minority
Schools Office of the Prefecture of Xanthi to the effect that he would
not perform his duties between 28 March 1994 and 2 April 1994.
On 7 June 1994 disciplinary proceedings were instituted against
him. On 20 December 1994 the Regional Disciplinary Board of Xanthi
decided that the applicant should be dismissed on the ground that he
lacked faith in and dedication to his country (Article 206 para. 1
subpara. 1 of the Civil Servant's Code), had refused to discharge his
duties (Article 206 para. 1 subpara. 19 of the Code), had intentionally
engaged in an act or omission which could damage or endanger the
interests of the State (Article 206 para. 1 subpara. 27 of the Code)
and had acted illegally in the discharge of his duties (Article 206
para. 1 subpara. 28 of the Code).
On 21 February 1995 the applicant appealed to the Council of
State (Simvulio Epikratias). He submitted that he did not lack faith
in and dedication to his country, that he had not acted against social
order, that he had the right to engage in objective and reasonable
criticism of the actions of his superiors or the Government, that he
had not refused to discharge his duties but had instead participated
in a lawful strike, that he had not engaged in any acts which could
have caused damage to the State or in any criminal offences, that he
had been forced not to perform his duties because his life had been
threatened by other Muslims, that the Board had attributed wrong
motives to his actions which were not anti-Greek and that his
punishment aimed at his destruction. He further claimed that the
hearing before the Disciplinary Board had not been preceded by a proper
inquiry, that the decision instituting proceedings against him was
vague and that he had been punished for offences which were not
mentioned therein. Finally, he argued that the decision of the Board
was not duly reasoned in that it failed to specify how his actions
amounted to the particular disciplinary offences which must have been
punished with the particular penalty.
In a decision delivered on 30 October 1995 the Council of State
considered that the inquiry ordered in the applicant's case satisfied
the requirements of the law. It also found that the decision
instituting proceedings against him was not vague since it mentioned
that the applicant had to be disciplined for having failed to perform
his duties between 28 March 1994 and 2 April 1994; as for the rest, the
Disciplinary Board and the Council of State remained free to examine
the facts for which disciplinary proceedings had been instituted
against the applicant under different legal provisions from those
mentioned in the decisions instituting such proceedings. The Council
of State considered that the applicant had no reason not to perform his
duties between 28 March 1994 and 2 April 1994 and had, moreover,
associated this abstention with statements of organisations which
proclaimed themselves to represent the "Turkish" teachers of Western
Thrace. As a result, he had committed the disciplinary offence of
particularly inappropriate behaviour in the exercise of his duties.
Moreover, the Council found that the applicant had abstained from his
duties following the calls for action of the so-called "Turkish"
teachers' organisations. As a result, the penalty of dismissal was
appropriate, because his actions had had as a result the disruption of
the functioning of the minority schools in Western Thrace in which the
State was particularly interested. They had also resulted in social
unrest among the Muslim minority of this sensitive region. This in turn
could have resulted in dangerous albeit unwarranted disruption of the
friendly relations between Greece and neighbouring countries and in the
disruption of the harmonious coexistence between the Greek citizens,
Muslim and Christian, who lived in Western Thrace. Finally, the Council
considered that the decision of the Board was duly reasoned. For these
reasons, the Council of State decided to reject the applicant's appeal.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention about
the unfairness of the decisions ordering and upholding his dismissal.
He stresses that it was obvious that the Disciplinary Board and the
Council of State took into consideration the statements of the various
organs of the minority when deciding to impose such a harsh penalty.
He submits that this was illegal.
2. He also complains under Article 11 of the Convention that he was
punished with dismissal for having participated in a peaceful
collective mobilisation intended to express his discontent with "the
chronic problems of the minority education system".
3. Finally, he complains of a violation of Article 9 of the
Convention and Article 2 of Protocol No. 1, because the aim of his
protest, for which he was punished, was to safeguard the right of
minority parents to educate their children in conformity with their own
religious and philosophical convictions.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the unfairness of the decisions ordering and upholding
his dismissal from the civil service.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
... hearing ... by (a) ... tribunal ..."
The Commission recalls that, according to the case-law of the
Court, disputes relating to the recruitment, careers and termination
of service of civil servants are as a general rule outside the scope
of Article 6 para. 1 (Art. 6-1) of the Convention because they do not
involve a determination of civil rights and obligations (Eur. Court HR,
Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32,
paras. 43 and 44). The applicant was a civil servant. It follows that
the proceedings in question did not involve a determination of the
applicant's civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission, moreover, considers that the proceedings were
exclusively disciplinary in character and led to no deprivation of
liberty. It follows that they did not involve the determination of a
criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention (No. 15965/90, Dec. 15.1.93, D.R. 74, p. 76).
The Commission, therefore, finds that Article 6 para. 1
(Art. 6-1) did not apply to the proceedings in question. As a result,
this part of the application is incompatible ratione materiae with the
provisions of the Convention and must be rejected in accordance with
its Article 27 para. 2 (Art. 27-2).
2. The applicant complains under Articles 9 and 11 (Art. 9, 11) of
the Convention that he was punished with dismissal for having
participated in a peaceful collective mobilisation intended to express
his discontent with "the chronic problems of the minority education
system" and to safeguard the right of minority parents to educate their
children in conformity with their own religious and philosophical
convictions.
Article 9 (Art. 9) of the Convention provides as follows:
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
Article 11 (Art. 11) of the Convention provides as follows:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the
administration of the State."
The Commission notes that the Council of State found the
applicant responsible for particularly inappropriate behaviour in the
exercise of his duties, a disciplinary offence, in that he had failed
to perform his duties between 28 March 1994 and 2 April 1994 and had
associated this behaviour with statements of organisations which
proclaimed themselves to represent the "Turkish" teachers of Western
Thrace. Moreover, the Commission notes that the statements of these
organisations called for collective action by the pupils and teachers
to protest against a ministerial decision concerning the functioning
of the minority schools. Finally, according to the Council of State,
dismissal was the appropriate penalty in the particular circumstances
of the case because the statements with which the applicant had
associated the failure to perform his duties affirmed the "Turkish"
identity of the minority of Western Thrace. The Council of State
considered that, by doing so, the applicant had, inter alia, disrupted
the harmonious coexistence between the Greek citizens, Muslim and
Christian, who lived in Western Thrace. The Commission, therefore,
considers that the applicant was punished both for having participated
in a strike and for certain views which he was deemed to have expressed
by doing so.
According to the case-law of the Commission, complaints
concerning the right to strike fall to be examined under Article 11
(Art. 11) of the Convention, which is the lex specialis in relation to
Articles 9 and 10 (Art. 9, 10) (Young, James and Webster v. the United
Kingdom, Comm. Report 14.12.79, para. 172, Eur. Court HR, Series B no.
39, p. 48). However, the Commission does not exclude that a separate
issue could arise under Article 10 (Art. 10) of the Convention, since
the Council of State clearly indicated that dismissal would not have
been the appropriate penalty for a few days' absence form work, if the
applicant had not, by his actions, sought to express the idea that a
"Turkish" minority existed in Thrace.
Insofar as Article 11 (Art. 11) of the Convention is concerned,
the Commission does not consider it necessary to examine whether the
applicant has exhausted domestic remedies. According to the case-law
of the Commission, Article 11 (Art. 11) of the Convention does not
guarantee the right of civil servants to strike (No. 10365/83, Dec.
5.7.84, D.R. 39 p. 237). It follows that no appearance of a violation
of this provision arises in this connection.
The Commission, therefore, considers that the part of the
application which concerns the applicant's punishment for his
participation in a strike is manifestly ill-founded and must be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as Article 10 (Art. 10) of the Convention is concerned,
the Commission recalls that the applicant received a harsher penalty
because, by participating in the strike, he was deemed to have
expressed the view that the minority in Western Thrace had a "Turkish"
identity and this had, inter alia, disrupted the harmonious coexistence
between the Greek citizens, Muslim and Christian, who lived in the
area. Moreover, in another case the Commission considered that it
constituted an impermissible limitation of the right of freedom of
expression to find somebody guilty of "sowing discord" among the
citizens on the ground that he had used the term "Turkish" to refer to
the Muslim minority of Western Thrace in the context of an electoral
campaign (Ahmet Sadik v. Greece, Comm. Report 4.4.95, paras. 53-54,
Eur. Court H.R. Reports 1996).
However, the Commission also recalls that under Article 26
(Art. 26) of the Convention it may only deal with a matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law. Moreover, according to the case-
law of the Commission and the Court, the fact that a domestic court of
appeal is competent to examine proprio motu grounds amounting to a
violation of the Convention does not absolve the applicant from the
obligation of raising the complaint before the court himself (No.
11244/84, Dec. 2.3.87, D.R. 55, p. 98; Eur. Court HR, Ahmet Sadik v.
Greece judgment of 15 November 1996, Reports 1996-V, No. 20, para. 33).
In the circumstances of the case, the applicant has not in any
manner affirmed before the Council of State his right to express the
view that the minority to which he belongs has a "Turkish" identity.
It follows that the applicant has failed to exhaust domestic remedies
in accordance with Article 26 (Art. 26) of the Convention in this
connection.
The Commission, therefore, considers that the part of the
application which concerns the applicant's harsher punishment for the
views he was deemed to have expressed by participating in the strike
must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of
the Convention.
4. The applicant complains of a violation of Article 2 of Protocol
No. 1 (P1-2), because the aim of his protest, for which he was
punished, was to safeguard the right of minority parents to educate
their children in conformity with their own religious and philosophical
convictions.
The Commission considers that the applicant, who is a teacher,
cannot claim to be a victim of a violation of this provision, which
guarantees rights for pupils and their parents. It follows that no
appearance of a violation of Article 2 of Protocol No. 1 (P1-2) arises.
This part of the application is, therefore, manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M. de Salvia S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy