Communicated on 16 January 2017
SECOND SECTION
Application no. 72432/10
Abdulkerim KOŞAR
against Turkey
lodged on 5 October 2010
STATEMENT OF FACTS
1. The applicant, Mr Abdulkerim Koşar, is a Turkish national, who was born in 1960 and lives in Mardin. He is represented before the Court by Mr A. Sayılır and Mr M.N. Eldem, lawyers practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.
1. Criminal proceedings
3. On an unspecified date while the applicant was working as a primary school teacher in Mardin, a police search was carried out at his house, where illegal publications, Kurdish grammar books and a blackboard were found. Following this search, several criminal proceedings were started against the applicant for the offences of possessing illegal books, membership of an illegal organisation and acting contrary to the Private Education Act.
4. The applicant was acquitted of all charges except for the possession of illegal books on 5 August 2002, 2 June 2003 and 17 September 2003 respectively.
2 Disciplinary proceedings
5. On 12 June 2003, after having been informed of a disciplinary investigation against him and having had the opportunity to present a written defence, the applicant received a disciplinary penalty in the form of a reduction of one thirtieth of his monthly salary. The reasoning was stated as follows:
“By virtue of section 125 § C (ı) of the Public Servants Act, you are sentenced to a reduction of one thirtieth of your monthly salary on the basis of having given private Kurdish grammar and vocabulary lessons in various homes and having possessed illegal publications of a divisive and secessionist character despite your duty as a public servant to give education in the official Turkish language.”
6. On 22 October 2003 the applicant lodged a claim against the Ministry of Education in the Erzurum Administrative Court, requesting that the disciplinary sanction be quashed.
7. On 26 May 2005 the Erzurum Administrative Court accepted the applicant’s request, holding that the applicant had been acquitted in the criminal proceedings with respect to the offence of acting contrary to the Private Education Act and that there was no evidence to the effect that the applicant had been giving Kurdish language lessons systematically in his house.
8. On an appeal by the Ministry of Education, the Supreme Administrative Court overturned the judgment of 26 May 2005 and remitted the case to the Rize Administrative Court, holding that the latter had jurisdiction to hear the case.
9. On 30 May 2008 the Rize Administrative Court upheld the disciplinary sanction and reasoned as follows:
“By virtue of section 131 of the Public Servants Act, exoneration from criminal liability does not preclude the finding of a disciplinary offence ... Despite the fact that the applicant was acquitted in the criminal proceedings concerning the offences of acting contrary to the Private Education Act and membership of an illegal organisation, it was not disputed that the applicant was found to be in possession of illegal publications that were of a divisive and secessionist character and that moreover he gave private Kurdish language lessons in his house - which alone is of a character that is incompatible with the trust and integrity inherent in the official function.”
10. The applicant appealed against this judgment to the Supreme Administrative Court, submitting that the impugned judgment was not accordance with the law as there were no legal restrictions against an individual practising or teaching Kurdish – a language that was spoken traditionally in Turkey – in a private setting. He further argued that the disciplinary offence with which he was charged, namely conduct that was incompatible with public service, had not taken place during his official functions but in his free time. The applicant complained that his rights under the European Convention of Human Rights, in particular his rights to freedom of expression and to respect for private life in conjunction with the prohibition against discrimination, had been breached.
11. On 21 October 2009 the Supreme Administrative Court rejected the applicant’s appeal without responding to the points raised by the applicant.
12. The applicant’s application with the same court for the rectification of the judgment was also rejected on 6 July 2010.
B. Relevant domestic law
13. Section 125 § C of the Civil Servants Act (Law no. 657) under the heading ‘reduction of salary’ defines an impugned conduct as:
“ı. Conduct during office that is incompatible with the trust and integrity inherent in the public function.”
14. In addition, section 125 § D of the Civil Servants Act (Law no. 657) under the heading ‘deferment of advancement’ defines the undertaking of commercial and other paid activities incompatible with civil service. In any case, this provision was not applied in the applicant’s case.
COMPLAINTS
The applicant complains under Articles 8, 10, and 14 of the Convention that the impugned administrative court decision of 30 May 2008 upholding the disciplinary sanction he had received amounted to discriminatory treatment on the basis of language and ethnical origin and violated his right to respect for his privacy and freedom of expression.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
2. Has there been a violation with the applicant’s freedom of expression, in particular his right to receive and impart information and ideas, within the meaning of Article 10 § 1 of the Convention?
3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his linguistic identity contrary to Article 14 of the Convention read in conjunction with Article 8 or 10 of the Convention?
In that regard, your Government are requested to clarify whether similar sanctions have been imposed on public employees on account of their giving foreign language lessons outside of their working hours, and if so, to provide the Court with examples.
The Government are requested to submit a copy of the disciplinary investigation file.
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