AS TO THE ADMISSIBILITY OF
Application No. 29282/95
by Vahit ÖZSOY
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 May 1995 by
Vahit Özsoy against Turkey and registered on 16 November 1995 under
file No. 29282/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen, born in 1943, resides in
Ankara.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In December 1973, the applicant was posted to Artvin as a judge.
In November 1976 the Judge Inspectors Committee requested the
applicant's suspension for breach of impartiality as a judge.
In January 1977 the Supreme Judges Committee dismissed the
request, and concluded that there were no grounds for imposing a
disciplinary penalty on the applicant. However, the committee gave him
a formal warning which stated that the criticised behaviour by a judge
could lead to a misunderstanding.
On later occasions he was subject to various warnings after he
had made statements to the public in which he had allegedly used
indecent and reproachful language against the Ministry of Justice.
On 12 August 1981 the Supreme Judges Committee took into
consideration the applicant's criticised behaviour, and the previous
warnings with which he had failed to comply and accordingly decided to
impose a disciplinary penalty on him by which he was moved to a court
in another city.
The applicant requested a re-examination, but on 26 April 1982,
the third Section of the Supreme Judges Committee rejected his request.
On 6 July 1983 the applicant resigned voluntarily from his post.
On 25 September 1992 the applicant applied to the Ministry of
Justice to be reinstated as a judge according to Law No. 3817 of 7 July
1992 which provided for a "partial pardon" for civil servants. The
pardon stipulated, inter alia, that disciplinary penalties imposed upon
all civil servants up to 7 July 1992, shall be revoked. The sole
exception applied to those civil servants who had been subject to
disciplinary penalties which entailed their removal from one place to
another or dismissal from their posts.
On 12 October 1992 the Supreme Judges and Prosecutors Committee
rejected the applicant's request for reinstatement. The committee
concluded that the pardon was not applicable to the applicant's case
as he had previously been removed from one court to another and this
kind of penalty was expressly excluded in the pardon.
The applicant requested a re-examination of his case several
times, but the committee rejected his requests. It concluded that the
reinstatement request had been rejected according to Law No. 3817 of
7 July 1992. Therefore, it was lawful and there were no grounds to
change or re-examine the first decision. The final decision was taken
on 7 November 1994.
COMPLAINTS
1. The applicant first complains that with regard to the Supreme
Judges and Prosecutors Committee's decision which is binding, he did
not benefit from the guarantees of a judicial procedure in conformity
with Article 6 para. 1 of the Convention.
2. He also complains under Article 10 of the Convention that the
disciplinary penalty imposed on him for having expressed his opinions
on many occasions, infringed his right to freedom of expression.
3. He further complains under Article 10 of the Convention that his
request to be reinstated as a judge was rejected merely on account of
his political opinions.
4. On the basis of the same facts, the applicant invokes Articles 1,
9, 14, 17, 25 and 60 of the Convention.
THE LAW
1. The applicant complains that, with regard to the Supreme Judges
and Prosecutors Committee's decision, which is binding, he did not
benefit from the guarantees of a judicial procedure in conformity with
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission recalls that in the case of Neigel v. France (Eur.
Court HR, judgment of 17 March 1997, Reports 1997-II, no. 32,
paras. 43 and 44), the Court noted that the law of many member States
of the Council of Europe makes a basic distinction between civil
servants and employees governed by private law, which has led it to
hold that "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)" (para. 43). In that case,
the Court found that the applicant's request for reinstatement to the
permanent post of shorthand typist which she had previously held
related to her "'recruitment', her 'career' and the 'termination of
[her] service'. It did not therefore concern a 'civil' right within the
meaning of Article 6 para. 1 (Art. 6-1)."
The Commission too, has held that the dismissal of a high ranking
soldier was a matter where the State acted in the field of public law
such that no "civil rights" were at issue (see, for example, E.S. v.
Germany, No. 23576/94, Dec. 29.11.95, D.R. 84, p. 58). This was also
the case in Balfour v. the United Kingdom (No. 30976/96, Dec. 2.7.97,
unpublished), where the Commission held that no "civil rights" were
involved due to the public nature of his former employment. Further the
Commission considers that in the light of the Court's judgment in the
Neigel case, the manner in which domestic law treats employees of the
State cannot be the prime consideration in determining whether a
dispute over a right is "civil": the question is one for the Convention
organs to determine.
Accordingly, the Commission finds that the dispute between the
applicant, a civil servant, and his employer, the State, did not
determine his "civil" rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1) therefore
does not apply in the present case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant also complains under Article 10 (Art. 10) of the
Convention that the disciplinary penalty imposed on him for having
expressed his opinions on many occasions, infringed his right to
freedom of expression.
However, the Commission recalls that the declaration made on
28 January 1987, pursuant to Article 25 (Art. 25) of the Convention,
by which Turkey recognised the Commission's competence to examine
individual petitions, extends only to facts and judgments based on
events occurring after that date.
The Commission notes in the present case that the complaint under
Article 10 (Art. 10) of the Convention concerns the imposition of the
disciplinary penalty on the applicant on 12 August 1981. The Commission
therefore observes that the facts alleged relate to a period prior to
28 January 1987.
The Commission also notes that the applicant was not dismissed
from his post but that he resigned voluntarily on 6 July 1983. This
date also relates to a period prior to 28 January 1987.
It follows that the applicant's complaint falls outside the
competence ratione temporis of the Commission and therefore must be
rejected as incompatible with the provisions of the Convention within
the meaning of Article 27 para. 2 (Art. 27-2).
3. He further complains under Article 10 (Art. 10) of the Convention
that his request to be reinstated as a judge was rejected merely on
account of his political opinions.
The Commission observes that, in the present case, the applicant
was prohibited, on the basis of a Turkish legislative provision, from
being reinstated in judicial service since he had been subject to
disciplinary penalty such as removal from one court. The Supreme Judges
and Prosecutors Committee did not, in refusing to reinstate the
applicant, take account of his personal opinions and attitudes, but
merely applied the national law as to disciplinary measures.
Therefore, the Commission considers that there has been no
interference with the exercise of the applicant's rights protected by
Article 10 (Art. 10) of the Convention and that this complaint must be
rejected as being manifestly ill-founded pursuant to Article 27
(Art. 27) of the Convention.
4. On the basis of the same facts, the applicant also complains of
a violation of the Articles 1, 9, 14, 17, 25 and 60
(Art. 1, 9, 14, 17, 25, 60) of the Convention.
An examination by the Commission of these complaints as they have
been submitted does not disclose any appearance of a violation of the
rights and freedoms set out in the Convention and in particular in
these Articles.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy