Information Note on the Court’s case-law 193
February 2016
Sodan v. Turkey - 18650/05
Judgment 2.2.2016 [Section II]
Article 8
Article 8-1
Respect for private life
Transfer of deputy prefect to less important post on account of his religious convictions: violation
Facts – At the material time the applicant was deputy governor of Ankara. In June 1998 an inspector in the governor’s office was instructed to carry out an investigation into the applicant’s general conduct, in particular on the basis of two circulars, one concerning separatism and the other fundamentalism, among senior officials in the governor’s office. The inspector’s report mentioned the applicant’s well-known religious beliefs and stated that the applicant’s wife wore the Islamic veil. Drawing in particular on a decision by the National Security Council relating, inter alia, to fundamentalist activities, it proposed transferring him to another department or to a post in central administration not entailing any public role. In July 1998 the applicant was transferred to a post of deputy governor in a less important town. His appeals were dismissed.
Law – Article 8: The central question in the case was whether the applicant was transferred solely on account of his qualifications and the requirements of the post, as the Government argued, or rather, as the applicant submitted, of his religious beliefs and private life.
It should be noted at the outset that the internal investigation concerning the applicant was ordered on the basis of a decision which had no bearing on the capacity of senior officials to embody authority and show initiative when discharging their duties. It related exclusively to the place of religion in society and within the institutions and to how people dressed. Moreover, although the inspector’s report did mention certain aspects of the applicant’s character, it attached considerable importance to his religious beliefs and the fact that his wife wore an Islamic veil. If the applicant’s transfer had been exclusively or primarily based on his qualifications, it would be difficult to understand why the authorities placed so much emphasis on his religious beliefs, his wife’s clothing and, more broadly, the decision by the National Security Council. The facts of the case as a whole suggested that there was an evident causal link between the applicant’s private life and beliefs, on the one hand, and his transfer, on the other. The applicant’s transfer amounted to a kind of disguised penalty. It therefore constituted interference in his private life. However, the Government had failed to provide any legal basis or to mention any legitimate aim or reasons to explain why that interference might be considered necessary in a democratic society.
As the inspector’s report itself acknowledged, the applicant had been impartial in the performance of his duties, and no activities relating to religious fundamentalism had ever been noted. The mere actual or assumed proximity to or membership of a religious movement could not constitute sufficient grounds in itself for adopting an unfavourable measure unless it had been clearly demonstrated that the applicant did not act impartially or received instructions from members of that movement, or that the movement in question represented a genuine threat to national security. Furthermore, even supposing that that were actually the case, it would be difficult to understand how that threat could be countered by merely transferring the applicant to another town rather than removing him from office. As regards the fact that the applicant’s wife wore the Islamic veil, the concern to preserve the neutrality of the public service did not justify taking that fact into account in the decision to transfer the applicant, since that was a private matter for those concerned and was not covered by any legislative or statutory provision.
Conclusion: violation (unanimously).
The Court also found a violation of Article 6 § 1 of the Convention on account of the length of the impugned proceedings.
Article 41: EUR 9,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Ivanova v. Bulgaria, 52435/99, 12 April 2007, Information Note 96)
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This summary by the Registry does not bind the Court.
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