AS TO THE ADMISSIBILITY OF
Application No. 29764/96
by Ahmet IMAM and others
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 14 December 1995
by Ahmet IMAM and others against Greece and registered on
9 January 1996 under file No. 29764/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
15 January 1997 and the observations in reply submitted by the
applicants on 15 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
All applicants are Greek citizens. The first five applicants,
born respectively in 1955, 1961, 1959, 1950 and 1959, and the seventh
applicant, born in 1956, reside in Xanthi, Greece. The sixth applicant
was born in 1953 and resides in Pahni, Xanthi. The eighth applicant was
born in 1950 and resides in Passos Sapon, Rodopi, Greece. The ninth
applicant was born in 1951 and resides in Komotini, Rodopi, Greece. The
tenth applicant was born in 1946 and resides in Kalamokastro, Rodopi.
The eleventh applicant was born in 1943 and resides in Komotini. The
twelfth applicant was born in 1952 and resides in Dokos Sapon. The
thirteenth applicant was born in 1951 and resides in Filira Sapon.
The first seven applicants are represented by Mr. O. Haciibram,
a lawyer practising in Xanthi. The first, second, fourth, sixth and
seventh applicants are also represented by Mr. I. A. Kehagia, a lawyer
practising in Xanthi. The remaining six applicants are represented by
Mr. H. Kasiktsoglou, a lawyer practising in Komotini, and Professor T.
Akillioglu, who is also practising as a lawyer in Ankara, Turkey.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
General background
The applicants, who consider themselves members of the Turkish
Muslim minority of Thrace, are graduates of the Special Academy for
Teachers (Idiki Pedagoyiki Akadimia) of Thessaloniki. They used to work
as teachers in the minority schools of Thrace, the first seven in the
Prefecture of Xanthi and the remaining six in the Prefecture of Rodopi.
Their conditions of employment were not different from those of other
civil servants.
On 18 January 1993 the Minority Schools Office of the Prefecture
of Rodopi called all the Muslim teachers of the minority schools of
Rodopi to attend an educational meeting on 1 February 1993. The aim of
the meeting was to present new books for the teaching of the Turkish
language, which would be delivered to the directors of the schools
between 2 and 5 February 1993.
A similar order was issued on 19 January 1993 by the Minority
Schools Office of the Prefecture of Xanthi.
On 26 January 1993 the Coordination Committee of the Highest
Council of the Muslim Turkish Minority of Western Thrace issued a
statement to the effect that the content of these books "was in breach
of the autonomy of the Muslim Turkish Minority of Western Thrace" and
failed to respect certain international agreements. The Muslim teachers
were called upon not to collect these books and the Muslim pupils not
to attend school between 1 and 5 February 1993, in order to voice the
protest of the Muslim Turkish Minority of Western Thrace.
On 29 January 1993 the Union of Turkish Teachers of Western
Thrace issued a statement to the effect that the Turkish schools of
Western Thrace would be closed between 1 and 5 February 1993, because
the Turkish teachers of Western Thrace were against the Turkish
language books which the Greek State intended to distribute to the
pupils of the minority schools. The statement also said that all the
Turkish Muslim teachers of Western Thrace would participate in the
strike. Reference was made to the members of the Union of Teachers of
Western Thrace who were graduates of the Special Academy for Teachers
of Thessaloniki. The statement specified that all those who felt
Turkish and who wanted to learn or teach the Turkish language would
take part in the boycott.
On an unspecified date, a Muslim religious leader, the mufti of
Xanthi, called on the Muslim teachers who felt Turkish not to go to the
presentation of the books on 1 February 1993.
On 31 January 1993 there was a general meeting of the members of
the Association of Minority Teachers of Rodopi, in which the eighth,
ninth, tenth, eleventh, twelfth and thirteenth applicants took part.
This was an association which had repeatedly but unsuccessfully tried
to obtain recognition by the Multi-Member First Instance Civil Court
(Polimeles Protodikio) of Rodopi (decisions No. 147/1992, 167/1993,
198/1993 and 5/1995). In the meeting of 31 January 1993 it was decided
that the members of the association would not attend the educational
meeting of 1 February 1993 in the Minority Schools Office of the
Prefecture of Rodopi, that they would not perform their duties between
1 and 5 February 1993 and that they would refuse to collect the new
books. The general meeting requested the provisional executive
committee of the association to inform the Minority Schools Office of
these decisions.
On 1 February 1993 the provisional executive committee of the
association, composed of the eighth, ninth, tenth, eleventh, twelfth
and thirteenth applicants, informed in writing the Minority Schools
Office of the decisions of the general meeting.
On 1 February 1993 eleven teachers of the minority schools of
Xanthi, including the first seven applicants, signed a statement to the
effect that they would not attend the educational meeting in the
Minority Schools Office of the Prefecture of Xanthi in order to protest
about certain unfair decisions against them concerning posting,
transfer and secondment and their exclusion from training seminars in
Thessaloniki and Strasbourg. They specified that they would not carry
out their duties between 1 and 5 February 1993.
On 5 February 1993 the Executive Committee of the Highest Council
of the Muslim Turkish Minority of Western Thrace issued a statement
congratulating the pupils and teachers who took part in the
mobilisation which showed the length to which the minority was prepared
to go in order to vindicate its rights.
Proceedings against the first seven applicants
On 3 February 1993 the Minority Schools Office of the Prefecture
of Xanthi asked the first seven applicants to state the reasons why
they had not attended the educational meeting of 1 February 1993.
On 8 February 1993 the applicants replied that, if they had
attended the meeting, disturbances could have been caused in their
school areas. The first, third, fourth, fifth, sixth and seventh
applicants added that the purpose of the meeting was to make them
collect books the content of which was not compatible with the Treaty
of Lausanne and the educational agreements of 1951 and 1968 between
Greece and Turkey. In the view of these applicants, the only books
which the minority could validly accept for the teaching of the Turkish
language were books sent by Turkey.
On 8 February 1993 the Minority Schools Office of the Prefecture
of Xanthi decided to institute disciplinary proceedings under
Article 206 para. 1 subparas. 1, 6, 12, 19, 20, 27 and 28 of the Civil
Servants' Code against the third, fourth, fifth and sixth applicants
for having failed to attend the educational meeting of 1 February 1993.
Similar proceedings were instituted on 9 February 1993 against the
first, second and seventh applicants.
On 10 February 1993 the Regional Disciplinary Board of Xanthi
ordered an inquiry and decided provisionally to suspend the seven
applicants from their duties for a year pending the outcome of the
disciplinary proceedings against them.
On 31 March 1993 the Ministry of Education confirmed the decision
of the Regional Disciplinary Board of Xanthi regarding the provisional
suspension of the applicants from their duties.
On 5 April 1994 the Regional Disciplinary Board of Xanthi issued
a decision in which it considered the following:
First, the seven applicants had been asked by their superiors to
attend the educational meeting of 1 February 1993 but had failed to do
so, arguing that attending the meeting would have disrupted their
relationship with their pupils and their parents and put their personal
integrity in danger. However, the Board considered that this excuse was
not valid, because the meeting would have taken place in the city of
Xanthi far from the applicants' school areas. Moreover, the applicants
took part in a strike between 1 and 5 February 1993 complying with the
order and appeal of the irregular Coordination Committee of the Highest
Council of the Muslim Turkish Minority of Western Thrace and the appeal
of the illegally self-proclaimed mufti of Xanthi calling on the Muslim
teachers who felt Turkish not to attend the meeting of 1 February 1993.
They had accused the State of persecuting them. Their illegal acts had
contributed to creating tension and commotion in the minority
community. The applicants had allied themselves with certain subversive
elements in the minority community who falsely contended that there was
no equality before the law in Western Thrace. Thus, they had become
agents of foreign anti-Greek powers. These facts constituted the
following disciplinary offences: not having faith in and dedication to
their country (Article 206 para. 1 subpara. 1 of the Civil Servants'
Code), refusing to discharge their duties or employing obstructive
tactics (Article 206 para. 1 subpara. 19 of the Code), taking part in
a strike in breach of Article 23 para. 2 of the Constitution and the
relevant legislation (Article 206 para. 1 subpara. 20 of the Code) and
intentionally engaging in an act or omission which could damage or
endanger the interests of the State (Article 206 para. 1 subpara. 27).
Secondly, the applicants had publicly criticised the Ministry of
Education on the ground that the new books were distributed in breach
of international agreements concluded by Greece. As a result, they had
committed the disciplinary offence of criticising the actions of their
superiors in public using phraseology which showed lack of respect or
intentionally using unfounded arguments (Article 206 para. 1 subpara. 6
of the above-mentioned Code).
Thirdly, the applicants had become organs of irregular committees
acting against the interests of the nation. Their actions had stirred
up trouble in the minority community and had led to the involvement of
Turkish newspapers, to tension between the two countries and to
criminal proceedings being instituted against parents who had disrupted
the functioning of the schools. As a result, the applicants had
committed the disciplinary offence of failing to respect a duty imposed
by criminal law (Article 206 para. 1 subpara. 28 of the Code).
The Board was fully satisfied that the applicants "acting in full
conscience and with intent and malice, behaving in a manner
incompatible with their status as civil servants, acting against the
nation and obeying the commands of anti-Greek power structures, aimed
at destabilising the region where the situation was until then normal
and creating social unrest." In the light of all the above, the Board
decided to impose on the applicants the disciplinary penalty of
dismissal.
On 31 May 1994 the applicants challenged the decision of the
Disciplinary Board before the Council of State (Simvulio Epikratias).
They claimed that they did not lack faith in and dedication to their
country, that they had not acted against social order, that they had
the right to engage in objective and reasonable criticism of the
actions of their superiors or the Government, that they had not refused
to discharge their duties but had instead participated in a lawful
strike, that they had not engaged in any acts which could have caused
damage to the State or in any criminal offences, that they had been
forced not to collect the books in person because their lives had been
threatened by other Muslims, that the Board had attributed wrong
motives to their actions which were not anti-Greek and that their
punishment aimed at their destruction. They further submitted that the
hearing before the Disciplinary Board had not been preceded by a proper
inquiry, that they had been punished for offences which were not
mentioned in the decisions instituting proceedings against them and
that the Board had not heard a number of witnesses they had proposed.
Finally, they argued that the decision of the Board was not duly
reasoned in that it failed to specify how their actions amounted to the
particular disciplinary offences which should be punished with the
particular penalty.
On 22 June 1995 the Council of State rejected the applicants'
appeal. The Council considered that the inquiry ordered on
10 February 1993 satisfied the requirements of the law and that the
Board had not failed to examine any witnesses proposed by the
applicants. The Council also considered that the applicants could not
be punished for facts other than those which were mentioned in the
decisions of 8 and 9 February 1993 by which the disciplinary
proceedings had been instituted. The applicants could only be punished
for having failed to attend the educational meeting of 1 February 1993.
However, the Disciplinary Board and the Council of State remained
free to examine these facts under different legal provisions from those
mentioned in the decisions instituting disciplinary proceedings.
The Council considered that the applicants' failure to attend the
meeting of 1 February 1993 in order to participate in a strike between
1 and 5 February 1993 amounted to the disciplinary offence of serious
disobedience under Article 207 para. 4 subpara. 10 of the Civil
Servants' Code.
The Council found that the punishment imposed was appropriate
given the circumstances in which the offence had taken place. The
Council referred in this connection to the statement of 26 January 1993
of the Coordination Committee of the Highest Council of the Muslim
Turkish Minority of Western Thrace, the statement of 29 January 1993
of the Union of Turkish Teachers of Western Thrace and the statement
of the mufti of Xanthi which called on all the Muslim teachers who
considered themselves Turkish not to attend the educational meeting of
1 February 1993. The Council considered that the applicants had
obviously associated their failure to comply with the order to attend
the educational meeting with the above-mentioned statements of
organisations which purported to represent the self-proclaimed Turkish
minority of Western Thrace. Seen in the light of the above, the
applicants' 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. All the elements of the disciplinary offence of
serious disobedience were set out in the decision which specified that
the applicants had not attended the meeting of 1 February 1993,
although they had been asked to do so by their superiors. The decision
also specified that the applicants had complied with the order and
appeal of the irregular Coordination Committee of the Highest Council
of the Muslim Turkish Minority of Western Thrace and the appeal of the
illegally self-proclaimed mufti of Xanthi calling on the Muslim
teachers who felt Turkish not to attend the meeting of 1 February 1993.
Proceedings against the remaining six applicants
On 2 February 1993 the Minority Schools Office of the Prefecture
of Rodopi asked the remaining six applicants to state the reasons why
they had not attended the educational meeting of 1 February 1993. The
applicants were also asked to explain why they had convened, on
31 January 1993 and in their capacity as members of a non-recognised
executive committee, a meeting of the Muslim teachers with civil
servant status and why they had cooperated in the taking of the
decision not to attend the educational meeting, not to carry out their
duties from 1 until 5 February 1993 and to refuse to collect the books
for the teaching of the Turkish language.
On 5 February 1993 the six applicants replied that, if they had
attended the educational meeting of 1 February 1993, disturbances could
have been caused in their school areas. They added that the purpose of
the meeting was to make them collect books the content of which was not
compatible with the Treaty of Lausanne and the educational agreements
of 1951 and 1968 between Greece and Turkey. In the applicants' view,
the only books which the minority could validly accept for the teaching
of the Turkish language were books sent by Turkey. Finally, they
claimed that they had not convened the meeting of Muslim teachers on
31 January but that they had simply attended it.
On 5 February 1993 the Minority Schools Office of the Prefecture
of Rodopi decided to institute disciplinary proceedings under
Article 206 para. 1 subparas. 1, 6, 12, 19, 20, 27 and 28 of the Civil
Servants' Code against the six applicants for having failed to attend
the educational meeting of 1 February 1993 and for having convened the
31 January 1993 meeting in which the above-mentioned decisions had
been taken. The Minority Schools Office considered that, as a result
of the applicants' actions, very few teachers had attended the
educational meeting, the functioning of the schools and of the
Prefecture had been rendered problematic, there had been a lot of
publicity and social peace had been disturbed. Finally, the Minority
Schools Office imputed to the applicants the fact that, although a
newspaper and the illegal Union of Turkish Teachers of Western Thrace
had announced that the teachers with civil servant status would
participate in the strike, they had convened a general meeting of their
de facto association in an attempt to render legitimate an illegal
action. In reality, however, they had obeyed the orders of an illegal
union and a political party.
On 20 February 1993 the Regional Disciplinary Board of Rodopi
ordered an inquiry and decided provisionally to suspend the seven
applicants from their duties for a year pending the outcome of the
disciplinary proceedings against them.
On 31 March 1993 the Ministry of Education confirmed the decision
of the Regional Disciplinary Board of Rodopi regarding the provisional
suspension of the applicants from their duties.
On 4 June 1993 the applicants appealed against the decision of
31 March 1993 of the Ministry to the Administrative Court of Appeal
(Diikitiko Efetio) of Athens. On a date which has not been specified,
the administrative court rejected their appeal.
In a decision issued on 8 April 1994 the Regional Disciplinary
Board of Rodopi considered the following:
First, the applicants had been asked by their superiors to attend
the educational meeting of 1 February 1993 but had failed to do so,
arguing that the meeting could have caused commotion in the school
area. However, the Board considered that this excuse was not valid,
because the meeting would have taken place in the city of Komotini far
from the applicants' school areas. Moreover, the applicants had taken
part in the illegal strike between 1 and 5 February 1993 following the
instructions of the irregular and illegal Union of Turkish Teachers
which had been disbanded by the Court of Cassation. The Union had
issued a statement to the effect that the Muslim teachers with civil
servant status who felt as Turks would take part in the strike. In the
statements they had made in their defence, the applicants had made
allusion to the possibility of the parents of the pupils reacting
violently. The applicants had questioned the sovereign right of Greece
to provide for the education of Greek citizens in accordance with the
Constitution and the relevant legislation. Moreover, they had
contributed to the creation of tension and commotion in Thrace and had
attempted to disrupt social order obeying the instructions of foreign
anti-Greek powers. As a result, the applicants had committed the
disciplinary offence of not having faith in and dedication to their
country (Article 206 para. 1 subpara. 1 of the Civil Servants' Code).
Secondly, the applicants had argued that the new books had been
distributed in breach of the Treaty of Lausanne. However, the Board
considered that the Treaty of Lausanne made no provision concerning
books. As a result, the applicants had committed the disciplinary
offence of criticising the actions of their superiors in public using
phraseology which showed lack of respect or intentionally using
unfounded arguments (Article 206 para. 1 subpara. 6 of the above-
mentioned Code).
Thirdly, the applicants had taken part in an illegal strike and
had failed to discharge their duties for a week. As a result, they had
committed the disciplinary offence of faulty discharge of their duties
(Article 206 para. 1, subpara. 12 of the Code).
Fourthly, the applicants had failed to obey the order to attend
the educational meeting of 1 February 1993. As a result, they had
committed the disciplinary offence of refusing to discharge their
duties or employing obstructive tactics (Article 206 para. 1
subpara. 19 of the Code).
Fifthly, the applicants had taken part in an illegal strike
called by the irregular and illegal Union of Turkish Teachers of
Western Thrace. The Union had not followed the normal procedures when
calling the strike. As a result, the applicants had committed the
disciplinary offence of taking part in a strike in breach of Article 23
para. 2 of the Constitution and the relevant legislation (Article 206
para. 1 subpara. 20 of the Code).
Sixthly, the applicants had associated themselves with the anti-
Greek activities of the illegal Union of Turkish Teachers and obeyed
their illegal orders. The statements they had made in their defence
contained propositions which had stirred up trouble in the field of
minority education. This had led to the involvement of Turkish
newspapers, to tension between Christians and Muslims and Greece and
Turkey and to criminal proceedings being instituted against parents who
had disrupted the functioning of the schools. As a result, the
applicants had committed the disciplinary offence of intentionally
engaging in an act or omission which could damage or endanger the
interests of the State (Article 206 para. 1 subpara. 27).
Seventhly, in the statements they had made in their defence the
applicants had claimed that the only books which the minority could
validly accept for the teaching of the Turkish language were books sent
by Turkey. However, the Board considered that this was a false
allegation and, as a result, the applicants had committed the
disciplinary offence of failing to respect a duty imposed by the
Criminal Code or another criminal law (Article 206 para. 1 subpara. 28
of the Code).
Finally, the applicants had not complied with the orders of their
superiors but had obeyed unlawful decisions of the illegal Union of
Turkish Teachers which engaged in anti-Greek activities in order to
disrupt social peace in Thrace. As a result, they had committed the
disciplinary offence of serious disobedience (207 para. 4 subpara. 10).
In the light of all the above, the Board decided to impose on the
applicants the disciplinary penalty of dismissal.
On 30 May 1994 the applicants challenged the decision of the
Disciplinary Board before the Council of State and asked for interim
measures. On a date which has not been specified, their request for
interim measures was rejected.
On 22 June 1995 the Council of State rejected their appeal. The
Council noted that the applicants had not been invited to make a
statement in their defence. However, they had failed to raise the issue
when they had appeared before the Regional Disciplinary Board. The
Council also considered that the inquiry ordered on 20 February 1993
satisfied the requirements of the law and that the Board had not failed
to examine any witnesses proposed by the applicants. The Council
further considered that the applicants had not been punished for any
facts which were not mentioned in the decision of 5 February 1993 by
which the disciplinary proceedings had been instituted. However, the
Disciplinary Board and the Council of State remained free to examine
these facts under different legal provisions from those mentioned in
the decision of 5 February 1993.
The Council considered that the applicants had committed the
disciplinary offence of serious disobedience in that they had failed
to attend the educational meeting of 1 February 1993. On the same day
the applicants had signed a declaration in which it was stated that,
on 31 January 1993 and in their capacity as members of a de facto
executive committee for Muslim teachers, they had convened a general
meeting of Muslim teachers graduates of the Special Teachers' Academy
in which they had decided not to take part in the educational meeting,
not to perform their duties between 1 and 5 February 1993 and to refuse
to collect the Turkish language books. The Council took into
consideration the circumstances in which the offence had occurred,
namely the statement of 26 January 1993 of the Coordination Committee
of the Highest Council of the Muslim Turkish Minority of Western Thrace
and the statement of 29 January 1993 of the Union of Turkish Teachers
of Western Thrace. The Council considered that the applicants had
obviously associated their failure to comply with the order to attend
the educational meeting and their participation in the de facto
executive committee with the above-mentioned statements of
organisations which purported to represent the self-proclaimed Turkish
minority of Western Thrace. The Council found that the punishment
imposed was appropriate because the applicants' 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 a 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. All the elements of the disciplinary offence of
serious disobedience were set out in the decision, which specified that
the applicants had not attended the educational meeting of 1 February,
although they had been asked to do so by their superiors. The decision
also specified that the applicants had complied with the order of the
illegal Union of Turkish Teachers calling on the Muslim teachers who
felt Turkish not to attend the above-mentioned meeting.
COMPLAINTS
1. The applicants complain under Article 6 of the Convention about
the unfairness of the decisions ordering and upholding their dismissal.
They stress that it was obvious that the Disciplinary Boards 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.
They submit that this was illegal.
2. They also complain under Article 11 of the Convention that they
were punished with dismissal for having participated in a peaceful
collective mobilisation intended to express their discontent with "the
chronic problems of the minority education system".
3. Finally, they complain of a violation of Article 9 of the
Convention and Article 2 of Protocol No. 1, because the aim of their
protest, for which they were punished, was to safeguard the right of
minority parents to educate their children in conformity with their own
religious and philosophical convictions. In their observations in
reply, the applicants indicated that they wished to complain of a
violation of Article 2 of Protocol No. 1 also in their capacity of
parents of minority schools pupils.
4. In their observations in reply the first seven applicants have
raised an additional complaint under Articles 9 and 14 that their
appeals to the Council of State against the disciplinary awards did not
have suspensive effect. The applicants submit that this rule applies
only in the case of appeals lodged by minority school teachers, who are
by definition Muslim, and not to appeals lodged by other civil
servants.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 December 1995 and registered
on 9 January 1996.
On 2 September 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 15
January 1997, after an extension of the time-limit fixed for that
purpose. The applicants replied on 15 April 1997, also after an
extension of the time-limit.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the
Convention about the unfairness of the decisions ordering and upholding
their 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 Government submit that the proceedings in question did not
involve a determination of the applicants' civil rights and
obligations. As a result, Article 6 para. 1 (Art. 6-1) of the
Convention did not apply.
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 applicants were civil servants. It follows that
the proceedings in question did not involve a determination of the
applicants' 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 applicants complain under Articles 9 and 11 (Art. 9, 11) of
the Convention that they were punished with dismissal for having
participated in a peaceful collective mobilisation intended to express
their 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. When communicating the application, the Commission also
invited observations under Article 10 (Art. 10) of the Convention.
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 10 (Art. 10) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
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 Government submit that, as it transpires from the decisions
of the Council of State, the applicants were punished only because they
had refused to attend the meeting of 1 February 1993, as they had been
ordered by their hierarchical superiors. Although the applicants argue
that they decided not to carry out their duties on that date in order
to take part in a peaceful collective mobilisation, the Convention does
not guarantee the right to strike. In any event, the applicants argued
before the domestic authorities that they had refused to attend the
meeting in question because they had been threatened by other members
of the Muslim minority. Moreover, they did not invoke Articles 9 and
10 (Art. 9, 10) of the Convention expressly or in substance. As a
result, the Government argue that the applicants have not exhausted
domestic remedies.
The applicants submit that they had the right to strike under the
Convention. They also argue that they were punished because of their
association with the bodies which had organised the collective action.
The Council of State acted in their cases as a court of law and fact
and, as a result, it had to apply the Convention, which is part of
domestic law, proprio motu. The Council of State failed to do so. It
follows that, even if the applicants had invoked the relevant
Convention provisions, this would have served no useful purpose. In any
event, the applicants consider that they were dispensed from the
obligation to invoke the Convention because in Greece there exists an
administrative practice of discriminatory measures against the Muslim
minority. The respondent Government's objection concerning exhaustion
of domestic remedies is raised abusively.
The Commission notes that, according to the Council of State, the
applicants were punished for serious disobedience, a disciplinary
offence, in that they had failed to attend the educational meeting of
1 February 1993 in order to participate in a strike. Moreover,
according to the Council of State, dismissal was the appropriate
penalty in the particular circumstances of the case because the
applicants had associated their failure to attend the meeting in
question with the statements of certain organisations which affirmed
the "Turkish" identity of the minority of Western Thrace and, by doing
so, they, inter alia, disrupted the harmonious coexistence between the
Greek citizens, Muslim and Christian, who lived in Western Thrace. The
Commission, therefore, considers that the applicants were punished both
for having participated in a strike and for certain views which they
were 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 (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 of the Convention, since the Council of
State clearly indicated that dismissal would not have been the
appropriate penalty for failure to attend a one-day meeting, if the
applicants had not, by their actions, sought to express the idea that
a "Turkish" minority existed Eur. Court HR, Ahmet Sadik v. Greece
judgment of 15 November 1996, to be published in Reports 1996, para.
33).
Insofar as Article 11 (Art. 11) of the Convention is concerned,
the Commission does not consider it necessary to examine whether the
applicants have 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 applicants' punishment for their
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 applicants received a harsher penalty
because, by participating in the strike, they were deemed to have
expressed the view that the minority in Western Thrace has 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, to
be published in Eur. Court HR, 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 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, to be published in Reports 1996, para. 33).
In the circumstances of the case, the applicants have not in any
manner affirmed before the Council of State their right to express the
view that the minority to which they belong had a "Turkish" identity.
As a result, whether or not the Council of State had the obligation to
apply Article 10 (Art. 10) of the Convention proprio motu is
immaterial. Moreover, the applicants have failed to substantiate their
allegations that their dismissals form part of an administrative
practice of discriminatory measures against the Muslim minority. It
follows that the applicants have 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 applicants' harsher punishment for the
views they were 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 applicants complain of a violation of Article 2 of Protocol
No. 1 (P1-2), because the aim of their protest, for which they were
punished, was to safeguard the right of minority parents to educate
their children in conformity with their own religious and philosophical
convictions.
The Government submit that Article 2 of Protocol No. 1 (P1-2)
guarantees rights for pupils and their parents and not for the
teachers. In any event, the applicants have not exhausted domestic
remedies. The applicants reiterate the arguments they have raised about
exhaustion of the domestic remedies in connection with the issues under
Articles 10 and 11 (Art. 10, 11).
The Commission considers that, insofar as the applicants complain
under Article 2 of Protocol No. 1 (P1-2) in their capacity as teachers,
they cannot claim to be victims of a violation of this provision. 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.
5. In the observations in reply they submitted on 15 January 1997
the first seven applicants also contended that they were parents of
children who attended minority schools and wished to complain of a
violation of Article 2 of Protocol No. 1 (P1-2) in that capacity as
well.
However, the Commission considers that it cannot examine this
complaint, because the requirements of Article 26 (Art. 26) of the
Convention have not been complied with in this connection. The
applicants in question have not invoked before the Council of State the
right to educate their children in conformity with their own religious
and philosophical convictions and have not submitted the complaint to
the Commission within the six-month period provided for in Article 26
(Art. 26) of the Convention.
It follows that this part of the application must be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
6. In their observations in reply the first seven applicants
complained under Article 9 and 14 (Art. 9, 14) that their appeals to
the Council of State against the disciplinary awards did not have
suspensive effect.
The Commission notes that the applicants have not raised this
complaint before the Council of State. Moreover, while the decisions
of the Council of State in the applicants' cases were issued on 22 June
1995 and the applicants obtained a copy later in the same year, this
complaint was first raised before the Commission on 15 April 1997.
It follows that the applicants have not complied with the
requirements of Article 26 (Art. 26) of the Convention. This part of
the application must, therefore, be rejected in accordance with Article
27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy