SECOND SECTION
DECISION
Application no. 3694/11
İnci GÜRLER DALGIÇ
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 February 2014 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Robert Spano, judges,
and, Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 11 November 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms İnci Gürler Dalgıç, is a Turkish national, who was born in 1976 and lives in Aydın. She was represented before the Court by Ms Z. Dalkıran, a lawyer practising in İzmir.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 July 2000 the applicant was appointed as a civil servant. Prior to her appointment, she had signed an undertaking agreeing to be dismissed if the result of her background check, which was postponed until after her appointment in the interest of saving time, revealed an outcome that would have prevented her appointment from the outset. The background check conducted subsequently disclosed that the applicant had been convicted by the Ankara State Security Court just a few months prior to her appointment to the civil service, on the charge of aiding and abetting members of a terrorist organisation. The background check also revealed that according to the police records, the applicant’s brother and husband had engaged in certain suspicious acts. Accordingly, the applicant was dismissed from her post, effective from 24 May 2001, on account of being unfit for the civil servant post.
On 14 September 2001 the applicant objected to her dismissal before the İzmir Administrative Court. She argued, inter alia, that her dismissal on the basis of a conviction which had not yet been finalised was unlawful.
In the meantime, on 6 February 2001 the Court of Cassation had quashed the applicant’s conviction, on the ground that the offence of which she was accused fell under Law no. 4616, concerning the suspension of criminal cases in respect of certain offences committed before 23 April 1999. Accordingly, on 3 May 2001 the Ankara State Security Court had ordered the suspension of the proceedings. Under Article 1 (4) of the Law no. 4616, the suspended proceedings could be resumed or a new prosecution could be brought in respect of the previous offence if the applicant committed before the expiry of the prescription period for that previous offence, an offence of the same kind or one which was punishable by a more severe sentence.
On 19 June 2002 the İzmir Administrative Court upheld the applicant’s objection regarding her dismissal for the reasons advanced by her, and annulled the dismissal decision.
On 22 September 2004 the Supreme Administrative Court upheld the lower court’s decision. The administration requested the rectification of this decision.
On 19 July 2006 the Supreme Administrative Court accepted the administration’s rectification request and overturned the earlier decision of the İzmir Administrative Court. In its decision, the Supreme Administrative Court acknowledged that the Ankara State Security Court’s judgment against the applicant had been quashed and the criminal proceedings had been suspended, which effectively meant that there was no longer a conviction against the applicant. Nevertheless, bearing in mind the specific purpose and scope of the background check, which examined whether the conditions for employment were satisfied as of the time of appointment, the subsequent decision of the Court of Cassation in the applicant’s favour did not render the dismissal decision unlawful. The case was accordingly sent back to the İzmir Administrative Court for re-examination.
On 21 September 2006 the İzmir Administrative Court rejected the applicant’s objection to her dismissal, for the reasons expressed by the Supreme Administrative Court. On 14 May 2007 the Supreme Administrative Court upheld this decision.
On 16 May 2007, following the expiration of the prescription period for her suspended offence, the Ankara Assize Court terminated the proceedings previously suspended, on the ground that the applicant had not committed any other offences in the meantime, as set out in Article 1 (4) of Law no. 4616.
On 20 August 2007 the applicant lodged an application with the İzmir Administrative Court for the reopening of the proceedings in relation to her dismissal, in view of the latest decision of the Ankara Assize Court. The applicant argued that since her conviction, which had formed the basis of the administrative court decisions upholding her dismissal, had been quashed definitively, the administrative proceedings in question qualified for reopening under Section 53 (c) of the Administrative Procedure Act (Law no. 2577), which envisaged reopening in the event of quashing by a final decision of a judgment that had formed the basis of a previous administrative court decision.
On 14 November 2007 the İzmir Administrative Court rejected her request, holding that none of the grounds for reopening, as listed exhaustively in Section 53 of the Administrative Procedure Act, had materialised in the instant case. The administrative court specified that Section 53 (c) referred to by the applicant was not applicable on the facts because contrary to her allegations, her conviction by the Ankara State Security Court, which was later suspended, had never formed the basis of the earlier administrative court decisions; it was rather the negative results revealed by her background check that had led to her dismissal and the upholding of that dismissal by the administrative courts. Although the administrative courts had expressly acknowledged the suspension of the criminal proceedings and the resulting absence of conviction, they had nevertheless decided to uphold the applicant’s dismissal in view of the circumstances at the date of appointment (i.e. July 2000), which was the only material date for the purposes of the background check. The Ankara Assize Court’s latest decision would thus not make a difference to its reasoning.
On 6 July 2009 the Supreme Administrative Court upheld the İzmir Administrative Court’s decision refusing reopening, and on 24 March 2010 it rejected the applicant’s rectification request. The final decision of the Supreme Administrative Court was served on the applicant on 14 May 2010.
COMPLAINTS
The applicant complained under Article 6 § 2 of the Convention that her dismissal despite the suspension of the criminal proceedings against her had violated her right to presumption of innocence.
She further contended under Article 7 of the Convention that her dismissal had also been partly based on acts committed by her brother and husband, which should not have had any legal implications for her.
Lastly, the applicant complained of a violation of Article 14 of the Convention and Article 1 of Protocol No. 1, without substantiating her claims.
THE LAW
1. The Court notes that the applicant’s complaints under both Articles 6 § 2 and 7 resulted from administrative court rulings that were finalised on 14 May 2007, that is more than three years prior to the lodging of the application with the Court on 11 November 2010.
The Court observes that under the Administrative Procedure Act, the reopening of proceedings is a special remedy, access to which requires the existence of certain specific conditions listed exhaustively therein. In the instant case, the request for reopening was rejected for lacking a ground under Section 53 of the Administrative Procedure Act and thus, it cannot be considered as interrupting the running of the six-month time-limit set out in Article 35 § 1 of the Convention (see, among many other authorities, Can v. Turkey (dec.), no. 41588/96, 23 March 2004).
The Court stresses in this connection that the fact that the applicant had no convictions against her as a result of the suspension of the relevant criminal proceedings had already been taken into account by the administrative courts in the first set of proceedings, but was not considered to be a sufficient reason to overrule her dismissal. This is because the dismissal decision had been taken exclusively on the basis of the material circumstances as of the date of appointment, i.e. July 2000. The subsequent decision of the Ankara Assize Court terminating the criminal proceedings, therefore, did not introduce any new elements that had not already been considered by the administrative courts in the first round. Therefore, even if the applicant’s dismissal were to be considered to be unfair under the Convention, that unfairness stemmed from the first set of proceedings that terminated on 14 May 2007, and not the second set of proceedings which did not examine the case on the merits.
It follows that both these complaints under Articles 6 § 2 and 7 of the Convention have been lodged out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. As for the remaining complaints under Article 14 of the Convention and Article 1 of Protocol No. 1, the Court notes that the applicant failed to substantiate them.
In these circumstances, having regard to the documents in its possession, the Court finds that this part of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints must be declared inadmissible as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithNebojša Vučinić
RegistrarPresident
Full & Egal Universal Law Academy