SECOND SECTION
DECISION
Application no. 25604/08
Ayten DURMUŞ
against Turkey
The European Court of Human Rights (Second Section), sitting on 30 April 2019 as a Committee composed of:
Julia Laffranque, President,
Stéphanie Mourou-Vikström,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 7 May 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Ayten Durmuş, is a Turkish national, who was born in 1966 and lives in Ankara.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On an unknown date a disciplinary investigation was initiated against the applicant for wearing an Islamic headscarf at school, and therefore not complying with rules on dress laid down by the rules on dress applicable to staff in state institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği), despite the previous disciplinary sanctions she had received for the same reason.
4. On 26 April 1999 the applicant, who was a primary school teacher in Nevşehir, was appointed to a school in another city, Çorum, by the Nevşehir Education Directorate. This appointment was in line with the recommendation indicated in the disciplinary investigation report dated 8 January 1999.
A. First set of proceedings
5. The applicant brought an administrative action for the annulment of the administrative act, together with a request for stay of execution regarding her appointment to another city, alleging that it was an unlawful intervention with her family unity, as her husband was working as a civil servant in Nevşehir and their two kids were also studying in the same city. The applicant further stated that her mother, who also lived in Nevşehir, was ill and she had to take care of her.
6. On 12 July 1999 the applicant’s request for stay of execution of her appointment to Çorum was rejected by the Kayseri Administrative Court. The applicant’s objection to that decision was rejected by the Kayseri Regional Administrative Court on 10 August 1999.
7. On 4 October 1999 Kayseri Administrative Court dismissed the applicant’s case. The administrative court first noted that the applicant continued not to comply with the rules on dress applicable to staff in state institutions, despite the warnings and several disciplinary sanctions she had received. Considering the possible negative effects on the schoolchildren and also the recommendation noted in the disciplinary investigation report, the domestic court held that the applicant’s appointment was in conformity with the public interest and that the applicant’s husband could eventually request to be appointed to the same city with her.
8. The applicant appealed against the Kayseri Administrative Court’s decision of 4 October 1999.
9. On 19 January 2000 the applicant requested unpaid leave for five months from the administration, on the grounds that she had to take care of her mother, whose health condition had deteriorated and that she was also diagnosed with tuberculosis, herself.
10. On an unknown date the applicant’s unpaid leave request was rejected. On 8 February 2000 the applicant obtained a medical certificate prescribing thirty days’ sick leave.
11. On 15 March 2000 the applicant submitted a petition to the administration requesting re-examination of her unpaid leave request. The applicant further stated that she had been on sick leave for her own medical treatment and that, in case the administration rejected her request, she would have liked to be deemed as resigned at the end of her sick leave.
12. On 10 May 2000 the Çorum provincial governor’s office informed the Ministry of National Education that the applicant had not taken up her duties at the end of her sick leave on 9 March 2000 and that she was deemed to have resigned from her job by that date, since she was not back to work after her sick leave.
13. On 6 October 2003 the Supreme Administrative Court, quashed the decision of 4 October 1999 as regards the applicant’s appointment to Çorum, on the ground that the administration should have taken into consideration the working place of the applicant’s husband and taken necessary steps in advance for the coordination of his appointment to the same city with the applicant if he had wished to. Meanwhile the Supreme Administrative Court held that the applicant’s suspension from her duty in her previous school in Nevşehir, following the disciplinary investigation, was in line with the domestic law and upheld that part of the decision.
14. On 15 April 2004, following the Supreme Administrative Court’s above decision, Kayseri Administrative Court annulled the decision concerning the applicant’s appointment to Çorum.
B Second set of proceedings
15. On 31 May 2004, subsequent to the Kayseri Administrative Court’s decision of 15 April 2004, the applicant requested the Ministry of National Education to be reinstated to her former position and the payment of salaries and other benefits which she had not received since her resignation.
16. On 22 June 2004 the applicant’s request of 31 May 2004 was rejected by the Ministry of National Education, on the ground that the Kayseri Administrative Court’s decision of 15 April 2004 was not applicable as the applicant was deemed to have resigned from her post as of 9 March 2000.
17. The applicant brought an action for annulment, together with compensation claims for pecuniary and non-pecuniary damages, against the decision of 22 June 2004. She complained that the administration had not complied with the Kayseri Administrative Court’s decision of 15 April 2004 given in her favour.
18. On 17 September 2004 the Kayseri Administrative Court issued a decision of lack of jurisdiction and transferred the file to the Ankara Administrative Court.
19. On 8 July 2005 the Ankara Administrative Court rejected the applicant’s request and held that, the applicant was deemed to have resigned from her post since she had not been to work after her sick leave period, that she had lost her status as a civil servant and that therefore the administrative court’s decision annulling the applicant’s appointment to another city was not applicable anymore. The administrative court also rejected the applicant’s compensation claims, since they had been brought within the context of alleged non-compliance with the domestic court’s decision given in her favour.
20. The Supreme Administrative Court upheld this judgment with a final decision dated 15 October 2007.
COMPLAINTS
21. The applicant complained under Article 8 of the Convention that her appointment to another city, which was far away from her husband and kids, the decision rejecting her reinstatement in her former position, and the denial of her compensation claims had breached her right to respect for family life. The applicant further complained under the same provision that she had to quit her job because of her appointment resulting from an unlawful administrative act.
22. The applicant further argued that the disciplinary penalties imposed on her had infringed Article 7 of the Convention.
23. Lastly, relying on Article 4 § 2 and 5 § 1 of the Convention, the applicant complained that she had been forced to resign from her job.
THE LAW
A. Complaint under Article 8 of the Convention as regards the first set of proceedings
24. The applicant complained of an infringement of her right to respect for family life on account of her appointment to another city, which was far away from her husband’s workplace and her kids’ school. She further claimed that she had to quit her job because of an unlawful act regarding her appointment. She relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”
25. The Court observes that the first set of administrative proceedings ended on 15 April 2004, by the Kayseri Administrative Court’s decision annulling the administrative act concerning the applicant’s appointment to Çorum.
26. The Court notes that the applicant became aware of that decision on 31 May 2004 at the latest, namely the date on which she asked the authorities to reinstate her to her former position. However, the application was lodged with the Court on 7 May 2008.
27. In the light of the foregoing, the Court finds that the applicant has failed to comply with the six-month rule in respect of her complaint under Article 8 of the Convention. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Complaint under Articles 6 and 8 of the Convention as regards the second set of proceedings
28. The applicant further complained under Article 8 that the administrative authorities had rejected her request for reinstatement to her former position, and accordingly had failed to comply with the decision given in her favour by the Kayseri Administrative Court on 15 April 2004.
29. The Court notes at the outset that, in the present case, there was not any decision taken by a State authority to dismiss the applicant, unlike the situation in the case of Denisov v. Ukraine ([GC], no. 76639/11, § 44, 25 September 2018). It was the applicant herself, who resigned from her post before the end of the first set of proceedings and, consequently, lost her status as a civil servant.
30. The Court reiterates that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot, as such, provide the basis for a complaint under the Convention (see Emel Boyraz v. Turkey, no. 61960/08, § 41, 2 December 2014; Vogt v. Germany, 26 September 1995, § 43, Series A no. 323; and Otto v. Germany (dec.), no. 27574/02, 24 November 2005). The Court observes that the applicant’s request to be reinstated as a civil servant concerned the right of recruitment to the civil service. It therefore concludes that Article 8 of the Convention is not applicable in the present case.
31. Even assuming that the alleged non-execution of the aforementioned domestic judgment could be examined from the standpoint of Article 6 § 1 of the Convention, the Court finds that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law (see Károly Nagy v. Hungary [GC], no. 56665/09, §§ 61-62, 14 September 2017, and Denisov v. Ukraine [GC], no. 76639/11, §§ 44-46, 25 September 2018). The Court therefore considers that Article 6 § 1 in its “civil” limb is not applicable in the present case either.
32. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
C. Other alleged violations of the Convention
33. The applicant alleged that the facts of the case had given rise to a further violation of Articles 4 § 2 and 5 § 1 and Article 7 of the Convention. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
34. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 May 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy