Communicated on 26 January 2017
SECOND SECTION
Application no. 67423/11
Serkan BOZKAYA
against Turkey
lodged on 13 September 2011
STATEMENT OF FACTS
1. The applicant, Mr Serkan Bozkaya, is a Turkish national, who was born in 1982 and lives in Afyonkarahisar.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. At the time of the events giving rise to the application, the applicant was an officer with the rank of “specialised sergeant” in the Turkish Armed Forces (“the army”). He had been serving in the army since 2005.
4. On 25 February 2009, he became a suspect in a military investigation concerning his participation in the sale of smuggled goods and abusing his authority by means of using those under his command for his personal gain.
5. On 5 July 2010, the applicant’s compulsory early retirement was ordered on disciplinary grounds, citing incompatible conduct that breached military discipline.
6. On 14 July 2010 the applicant brought proceedings before the Ankara Military Administrative Court, challenging his compulsory retirement. He requested a stay of execution of his compulsory early retirement because criminal proceedings were still pending against him.
7. The applicant’s request for the stay of proceedings was rejected on 26 October 2010.
8. On 22 February 2011, the court also dismissed the applicant’s request for his compulsory retirement to be quashed on the following grounds:
“With respect to the applicant’s compulsory retirement, the court will have regard to whether the applicant breached military discipline and whether he was unable to correct his behaviour despite the warnings and sanctions he received, and whether he acted contrary to the moral standards established by the military.
In the light of the applicant’s personnel records, the court notes that the applicant started his career with the military on 30 August 2005 and was promoted to the post of senior sergeant on 30 August 2007. His appraisals indicated his performance as good, very good and excellent, respectively. In one appraisal cycle, he has received poor comments from one of his superiors. Overall he has 16 commendations (takdir) and has not received any warnings or sanctions during his term. When he was serving in the Van Başkale Gelincik ... Unit, he was arrested on 1 March and released on 6 March 2009. He was arrested again on 9 March and released on 6 May 2009 ... the Van Military Prosecutor’s indictment charged the applicant with “... hiding and then turning a blind eye to the selling of petroleum and horses confiscated in connection with various military operations ... using the conscript soldiers in his command to dig for treasure for his personal gain [... therefore] the applicant was charged with storing and selling smuggled goods, allowing crimes to be committed (suç yapılmasına göz yummak), ordering conscript soldiers under his command to commit an offence ...
It goes without saying that the State has authority to take precautions to ensure the efficient workings of public service. For this reason the State seeks certain qualifications in employing state agents who are capable of serving the public interest. However, there is nothing more natural for the State to dismiss an agent who no longer serves the public interest and whose conduct is of a nature to harm the workings of the public service.
In the light of the foregoing, the court takes the view that the applicant has been dismissed on the basis of conduct as explained above, which constitutes breach of discipline. There is no obligation to suspend the proceedings and wait for the outcome of the criminal proceedings. It is also of no consequence that the criminal proceedings in respect of the offences against the applicant are pending or whether they can subsequently be characterized as neglect of duty because the characterisation of the conduct [which is the subject matter of the criminal proceedings] constitutes breach of discipline and is incompatible with the moral standards and the integrity associated with the Turkish Armed Forces and is a loss of public servant status. To continue to employ the applicant in the military forces would be contrary to the public interest. Therefore having regard to the fact that the applicant’s discharge was ordered in accordance with Section 94/b of the Turkish Armed Forces Act and Sections 60 and 61 of the Regulation on the Personnel Records of Non-Commissioned Officers, the court concludes that the decision to order the applicant’s compulsory retirement is not unlawful.”
9. The applicant’s request for the judgment of 22 February 2011 to be rectified was rejected on 21 June 2011.
10. On 18 July 2012, the Van Military Court declared that it lacked jurisdiction in respect of the offences of storing and selling smuggled goods for the applicant and other former military personnel. Having regard to the fact that they had lost their military status during the proceedings and that the offence with which they were charged also constituted a civilian offence, the Van Military Court referred the case to the Çaldıran Assize Court. It further acquitted the applicant in respect of the charge concerning giving orders to those under his command to commit offences as well as using those under his command for his personal gain.
11. The proceedings before the Çaldıran Assize Court are still pending.
B. Relevant domestic law
12. Article 125 of the Constitution as in force at the material time provided that:
“All acts or decisions of the administration are subject to judicial review.
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.”
Article 129 §§ 2, 3 and 4 of the Turkish Constitution provided that civil servants other than members of the armed forces could not be subjected to disciplinary penalties unless they were granted the right to defend themselves. It further provided that disciplinary penalties other than warnings and reprimands were subject to judicial review. Provisions concerning members of the armed forces were reserved.
13. Section 94 (b) of the Military Personnel Act (Law no. 926) provided at the material time:
“Discharge for breaches of discipline and immoral behaviour
Irrespective of the length of their service, non-commissioned officers whose continued presence in the armed forces is judged to be inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act.
The Regulations on assessment of non-commissioned officers shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted to it by the Chief of Staff.”
14. Relevant domestic law in force at the material time concerning the compulsory retirement of army officers for reasons of discipline were set out in Section 60 of the Regulation on the Personnel Records of Non‑Commissioned Officers (Astsubay Sicil Yönetmeliği), relevant parts of which read:
“Irrespective of the length of their service, non-commissioned officers whose continued presence in the armed forces is judged to be inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The following acts shall be considered to justify a discharge for breaches of discipline and immoral behaviour:
a. Disrupting discipline and continue to act in breach of discipline despite warnings and sanctions;
b. Inability to act in accordance with the standards required by the armed forces despite being warned;
...
e. Immoral conduct or behaviour that is incompatible with the reputation of the armed forces;
f. Conduct or behaviour that attests to holding unlawful, subversive, separatist, fundamentalist and ideological political opinions or having taken an active part in the propagation of such opinions.
An officer can be discharged from the armed forces on disciplinary or moral grounds at any time ... Appraisal officers shall carry out an assessment based on the grounds set out in this section and note their comments on the officer’s personnel file ...after the assessment note is signed by other appraisal officers, the recommendation to discharge the officer is dispatched to the related Central Personnel Directorate of the Force Command, Gendarmerie or Coast Guard.
...
The Central Personnel Directorate shall examine the officer’s personnel record and the related assessment note and refer the case file with all related documents to the Commission, which is convened under the presidency of the Lieutenant General, and is composed of the heads of intelligence, operations and staff unit, head of the advancement unit, other officers as necessary, including managers from the management of staff and the legal department. The Commission shall examine whether the assessment is in accordance with the applicable law and regulations, and whether the validity and supporting documents are sufficient. The Commission may request separate oral or written assessment from appraisal officers, or more documents. After its examination, it shall submit its conclusion to the related commander and proceed with the final decision of the latter. In cases where the commander does not approve the decision of the Commission, the officer shall be transferred to a different duty location. In cases where the decision to discharge the officer is approved, the case is referred to the Office of the Chief of the Army General Staff which shall make a decision to recommend the case to be referred to the Supreme Military Council. The cases which are referred to the Supreme Military Council by the Chief of the Army General Staff shall be subject to the final decision of the Supreme Military Council in its first meeting. The cases which have not been referred to the Supreme Military Council [by the decision of the Chief of the Army General Staff] shall be remitted to their respective unit and the prior decision of the commander unit shall be executed.
...”
COMPLAINT
The applicant complains under Article 6 § 2 of the Convention that his dismissal from the military in the absence of a conviction for the acts of which he stood accused amounted to an infringement of his right to the presumption of innocence.
QUESTIONS TO THE PARTIES
Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, was the reasoning of the Van Military Administrative Court’s judgment of 22 February 2011, which characterized the allegations against the applicant as conduct that was in breach of military discipline compatible with the presumption of innocence, bearing in mind that the criminal proceedings concerning those allegations were pending before the competent criminal courts?
The Parties are requested to submit the applicant’s military disciplinary file, including the applicant’s personnel files. The parties are also requested to inform the court of the outcome of the criminal proceedings against the applicant before the Çaldıran Assize Court.
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