KEMAL COSKUN v. TURKEY - 45028/07 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)) [2017] ECHR 281 (28 March 2017)

In the case of Kemal Coşkun v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Paul Lemmens, President,
          Işıl Karakaş,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 21 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 45028/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Kemal Çoşkun (“the applicant”), on 4 October 2007.

2. The applicant was represented by Ms Mehtap İçen, a lawyer practising in Antalya. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged violations of Article 6 §§ 1 and 2 of the Convention on account of his dismissal from the police force following unfair proceedings and despite the absence of a criminal conviction against him.

4. On 29 August 2013 the application was communicated to the Government. The applicant submitted his observations on 23 May 2014, in reply to the observations of the Government on the admissibility and merits of the case, and also complained of a violation of Articles 3 and 7 of the Convention. The Government did not comment on these complaints.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and lives in Antalya.

1. Criminal proceedings against the applicant

6. On 3 July 2004 the Samsun gendarmerie received a telephone call about a woman who had been heard crying for help in a white civilian car heading out of the city. On the basis of the information received, the gendarmerie located the car, which was being driven by the applicant, a police officer, in an isolated area outside the city. According to the incident report drawn up by the gendarmerie, the woman, identified as Ç.V., was crying when they approached the car and said that she had been kidnapped and beaten up by the applicant. There was blood around her mouth. Following preliminary evaluations at the place of the incident, both parties were taken to the gendarmerie station for their official statements. On the way to the station the applicant, who had been allowed to drive his own car, was caught trying to get rid of a knife, a hatchet and a mobile phone that he was hiding in the car. These articles were confiscated by the gendarmerie as evidence, along with a gun, duct tape, a rope, a bloodstained towel, handcuffs and a truncheon found in the applicant’s car in a subsequent search.

7. Upon arrival at the gendarmerie station, Ç.V. was at once brought before the Samsun Public Prosecutor, where she stated that she had been having an extra-marital affair with the applicant for a while, but wanted to break the relationship off because of his constant threats and pressure; that she had agreed to meet the applicant earlier that day to talk for one last time, but that after meeting in his car, the applicant had driven her out of the city without her consent, hit her in the stomach with a truncheon and beaten her, tied her hands with a rope, and threatened to assault her sexually.

8. In his statement to the public prosecutor, the applicant admitted that he had started seeing Ç.V. two years before to help her through her divorce, including financially. However, over time Ç.V. had become very demanding and aggressive, and had threatened to expose their relationship and spread lies about him numerous times. He denied the allegation that he had kidnapped Ç.V. and claimed that it was she who had wanted to meet. He claimed that after they had met in the car she had demanded more money from him, started screaming and threatened to shoot herself, put on his police handcuffs and exhibited other “mentally unstable behaviour”, which had prompted him to hit her. She had then kissed him to calm him down and offered to have sexual intercourse, which he had rejected as she was menstruating.

9. On 12 July 2004 the Forensic Medicine Institute issued its report in relation to Ç.V., which recorded a 0.5 cm cut on her tongue, a red ecchymosis of 3 cm x 2 cm on the right side of her neck, a red lesion on her upper right chest, and pain in her left thumb. The report concluded that the injuries sustained had rendered Ç.V. unfit for work for seven days.

10. On the same day Ç.V. submitted a written statement to the Samsun Public Prosecutor, confessing that she had misrepresented the facts and had falsely accused the applicant in her prior statements because she had been upset with him; that she had not been kidnapped as previously alleged; and that the applicant had only hit her while they were quarrelling and had done her no other harm.

11. Later the same day the public prosecutor summoned Ç.V. to seek an explanation in person. This time, Ç.V. claimed that she had submitted the written statement under duress and that her initial accusations had been truthful.

12. On 16 September 2004 the Samsun Public Prosecutor filed a bill of indictment with the Samsun Assize Court against the applicant, charging him with attempted rape, false imprisonment and robbery.

13. During the criminal proceedings before the Samsun Assize Court, Ç.V. maintained her allegations against the applicant, save for the attempted sexual assault. She claimed in this connection that although the applicant had said he would rape her, had taken off his pants and had told her to get undressed, he had never actually attempted to assault her sexually. The applicant, on the other hand, continued to deny the accusations against him. As evidence of the financial pressure he had received from Ç.V., the applicant submitted to the trial court copies of her phone bills, which she had given him for payment.

14. The gendarmerie commander testified before the assize court that when they arrived at the scene of the incident Ç.V. was crying and looked frightened; she had handcuff marks on her hand and nail scratches on her neck. The applicant was sitting next to Ç.V. in his undershirt. He added here that it was a hot day. When he asked them what was going on, the applicant tried to brush over the matter lightly, while Ç.V. pointed to her bleeding mouth and signalled a gun with her hand. Upon his demand, the applicant retrieved the gun from the boot and handed it over to the commander. Ç.V. then told the commander that the applicant had kidnapped her and would have raped her if she were not menstruating or if the gendarmerie had not intervened.

15. Based on the statements from the parties and witnesses, as well as other information in the case file, the Samsun Assize Court acquitted the applicant on 21 March 2006 of the charges of false imprisonment and robbery. As for the charge of attempted rape, the assize court held that the applicant had not attempted to rape Ç.V. However, his conduct underlying that charge had in fact constituted assault and battery, on which grounds the assize court ordered his conviction. The operative part of the judgment read:

“The applicant is acquitted of the charge of false imprisonment as the elements of the crime were not fulfilled since Ç.V. had consented to meet the applicant and get into his car.

The applicant is acquitted of the charge of robbery since the elements of the crime could not be proven; and notwithstanding Ç.V.’s allegations, there was no evidence in the case file that could reasonably and beyond any doubt prove that the applicant committed such an act.

As far as the charge of attempted rape is concerned, the court finds it established that the applicant was infuriated with Ç.V. on account of the latter’s wish to break up with him and therefore assaulted Ç.V. In the light of the facts, the applicant is convicted of the offence of assault and battery and not on the charge of attempted rape, as was previously and wrongly characterised.”

16. Both the applicant and Ç.V. appealed against the judgment of the Samsun Assize Court. However, in her appeal Ç.V. did not contest the absence of a conviction on the charge of attempted rape.

17. On 17 September 2012 the Court of Cassation quashed the judgment of the Assize Court on the ground that the five-year limit for the offence of assault and battery had expired, and ordered the discontinuation of the criminal proceedings against the applicant on that basis. It upheld the applicant’s acquittal for the remaining charges.

2. Disciplinary proceedings against the applicant

18. Parallel to the criminal proceedings pending before the Samsun Assize Court, the General Security Directorate of the Ministry of the Interior initiated disciplinary proceedings against the applicant in relation to the incidents of 3 July 2004.

19. The Samsun Police Disciplinary Council, which was in charge of the disciplinary investigation, asked for the applicant’s written defence, which he supplied on 29 November 2004, and concluded on 16 December 2004 that it had been established that the applicant had committed the offences of false imprisonment, attempted rape and threatening violence with a weapon, and transferred the case to the Supreme Disciplinary Council of the General Security Directorate (“the Supreme Disciplinary Council”) for a decision on the applicant’s dismissal from the police force in accordance with the provisions of section 8 § 6 of the Disciplinary Regulations of the Security Forces (“the Disciplinary Regulations”).

20. Basing itself largely on the evidence available in the criminal investigation file, on 15 February 2005 the Supreme Disciplinary Council found it established that the applicant had committed the offences of attempted rape, assault and threatening violence with a weapon, and ordered his dismissal from the police force as requested.

21. The applicant submitted an objection to this decision to the Samsun Administrative Court. He argued, inter alia, that the complainant’s allegations against him were contradictory and that the criminal proceedings on the same charges were still pending before the Samsun Assize Court.

22. On 29 September 2005 the Samsun Administrative Court upheld the dismissal decision of the Disciplinary Council as lawful. The administrative court opined that Ç.V.’s initial statements to the gendarmerie, along with her medical report and the articles confiscated from the applicant’s car on the date of the incident, some of which he had attempted to hide from the gendarmerie, constituted sufficient evidence to hold that the applicant had committed the acts of attempted rape, false imprisonment and threatening with a weapon held against him, although there were no witnesses to corroborate Ç.V.’s allegations. The relevant part of the judgment read:

“The acts of ... rape, attempted rape and robbery listed in section 8 § 6 of the Disciplinary Regulations are types of conduct that carry the sanction of dismissal from the civil service ...

The applicant is prosecuted in relation to the events that took place on 3 July 2004 and he is accused of attempted rape, false imprisonment and threatening Ç.V. with a weapon. Based on the criminal case file and the disciplinary investigation report, it is understood that the applicant and Ç.V. had been involved in a sexual relationship for two years, which later became a subject of blackmail for both parties. The victim, Ç.V., alleged that the applicant had brought her to the crime scene against her will and forced her to have intercourse with him while handcuffing her hands, taping her mouth closed, and threatening her with a gun, a knife and a hatchet. Although the applicant has denied these allegations, the fact that the weapons and tools used in the assault were found and confiscated at the crime scene, and that the victim’s injuries were corroborated by a medical report, and finally the fact that the applicant tried to conceal evidence, led the disciplinary authorities to rely on the victim’s version of the events, despite the fact that there were no witnesses to corroborate the victim’s allegations.

In the present dispute, it can be concluded that the applicant had a relationship with Ç.V. for two years. Notwithstanding the fact that the victim and the applicant gave different accounts of the events and that the specific allegations were not corroborated by witnesses, the court notes, on the basis of the preliminary investigation report of the Samsun Prosecutor’s Office, that an anonymous caller notified the authorities that a cry for help came from a white Şahin type civilian type vehicle in the vicinity of Alanlı Village, and that the applicant and Ç.V. were later spotted by the gendarmerie close to that area, sitting in a similar car. The crime scene report indicated that a search was carried out in the applicant’s car following Ç.V.’s complaint and that a gun, a knife, a hatchet, handcuffs, a truncheon, duct tape, rope and a bloodstained blue towel were found.

The victim’s injuries were also documented by a medical report ...

In this respect, the court takes the view that the applicant committed the acts he was accused of, basing its view on the consideration that the applicant was with Ç.V. in his car, that Ç.V. stated to the gendarme that she was being held against her will, and that during the search the gendarmerie found and confiscated a pistol, knife, hatchet, rope and a towel stained with blood, and that the applicant tried to conceal other weapons from the authorities.

Therefore, the disciplinary offence of which the applicant was accused and the corresponding sanction he received cannot be deemed unlawful.”

23. The applicant appealed against the judgment of the Samsun Administrative Court, drawing the attention of the appeal court to the fact that he had in the meantime been acquitted of the criminal charges of false imprisonment, robbery and attempted rape by the Samsun Assize Court, and that his conviction for assault and battery would not in itself justify his expulsion from public service under the terms of the Disciplinary Regulations.

24. By its decision of 10 April 2007 the Supreme Administrative Court rejected the applicant’s arguments, holding that according to Section 131 of Law no. 657 on Public Service, an acquittal in respect of criminal charges did not preclude the imposition of disciplinary sanctions on the same facts. The relevant part of the judgment read:

“The applicant asked the court to quash the decision to dismiss him from the police service and to overturn the decision of Samsun Administrative Court upholding his dismissal on the grounds that he had been acquitted of the criminal charges of false imprisonment, robbery, and attempted rape by the first-instance court, and that the charges of assault and battery on which he was convicted did not constitute conduct that attracted the penalty of dismissal from service. Be that as it may, since exoneration from criminal liability, or lack thereof, does not preclude the imposition of disciplinary sanctions by virtue of section 131 of Law no. 657 on Public Service, the present application must be rejected.”

25. This decision was served on the applicant on 12 July 2007.

3. Request for reopening of proceedings

26. On unspecified dates, but after the introduction of his complaint to the Court, the applicant brought separate proceedings against the Ministry of Interior and the Governor of Samsun before the Samsun Administrative Court and requested the rectification of his civil servant record and the reopening of proceedings with respect to his dismissal from the police force. The applicant relied on the Court of Cassation’s judgment of 17 September 2012, acquitting him of the charges of false imprisonment and robbery and discontinuing the proceedings in respect of battery and assault, and argued before the Samsun Administrative Court that his right to presumption of innocence had been violated in the course of the dismissal proceedings because he had been dismissed on the basis of allegations that he had committed offences in respect of which the criminal proceedings had not yet become final. The Samsun Administrative Court declared both applications inadmissible, on 11 December and 27 December 2012 respectively, holding that none of the reasons put forth by the applicant for the reopening of the proceedings fell within the exhaustive list of permissible grounds for this extraordinary remedy.

27. On 6 March 2013 the applicant appealed against the decision of the Samsun Administrative Court of 27 December 2012 before the Supreme Administrative Court.

28. On 10 February 2014, the Supreme Administrative Court rejected the applicant’s appeal request, endorsing the reasons given in the judgment of the Samsun Administrative Court of 27 December 2012.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. Sections 6 and 7 of the Disciplinary Regulation of the Security Forces sanction conduct that is incompatible with the reputation and trust inherent in the official function with a deferment of advancement to a higher rank. Depending on where the impugned conduct takes place, the officer in question may get a longer deferment on advancement.

30. Section 8 of the Disciplinary Regulation of the Security Forces provides as follows:

“The following acts, procedures, behaviour and conduct entail expulsion from the profession:

1. To discriminate on the basis of language, race, gender, political affiliations, philosophical convictions, religion or sect; to act contrary to the principles of secularism in carrying out official functions,

2. By means of propaganda to incite other police officers against carrying out their official duties ...

3. Insubordination to a superior police officer, inciting other police officers to do the same,

4. [repealed.]

5. To threaten a superior police officer,

6. To commit larceny, robbery, fraud, extortion, bribery, embezzlement, defalcation, rape, sexual assault, forgery, counterfeiting, intentional killing or attempting any of these offences, abuse of trust, bearing false witness, perjury, false accusation, slander,

7. To use his position as a police officer for his personal or another person’s advantage,

8. To give official files or their copies thereof to any unauthorised person,

9. To wilfully permit a suspect to get away,

10. To wilfully destroy or conceal evidence or allow it to disappear,

11. To sell or buy property that belongs to the State, or to allocate it to another person’s use,

12. To wilfully make or sign a false statement or report or to let another person sign such a statement,

13. To share classified information with unauthorised persons,

14. To refrain from assisting other police officers in need without a lawful excuse, or to fail to prevent a crime being committed in his presence or to fail to apprehend a suspect,

15. To visit brothels wearing the official uniform when off duty, or to visit such places with or without the official uniform when on duty unless such a visit is work-related,

16. To enter into a relationship with sex workers, or those who are of low moral conduct,

17. To consume alcohol while on duty,

18. To come to work intoxicated,

19. To consume alcohol in public with the official uniform on,

20. To manufacture, consume, traffic or sell drugs [...], or to act as an intermediary in any of those acts,

21. To gamble or let gamble, or to mingle with persons who gamble,

22. To smuggle goods or mingle with smugglers,

23. To discharge a firearm without a lawful reason in public places,

24. To wilfully or negligently allow a person without a valid authorisation to enter or leave the country,

25. To alter or destroy personnel files,

26. To fail to justify the source of income where it is established that the officer in question leads a lifestyle that is manifestly disproportionate to his salary,

27. To fail to carry out a surveillance duty without a valid excuse,

28. To act contrary to the prohibition against strikes as enacted in the Public Service Act,

29. To act contrary to the prohibition to engage in commercial or other activities as enacted in the Public Service Act,

30. Membership to a political party or to assist in a political cause or to engage in political acts,

31. To participate in demonstrations or political party meetings unless assigned as a duty officer,

32. To participate in a demonstration or an association meeting that does not concern a scientific, cultural or technical matter, or to participate in a meeting while wearing the official uniform, or to organise or participate in an association meeting that does not concern its purpose or field of activity unless assigned as a duty officer,

33. To form or join an association other than a sports association or the Turkish Security Forces Foundation,

34. To wilfully obstruct radio communication,

35. To communicate to the news media any matter that is incompatible with the respect and honour with the security forces, or any criticism of superior police officers,

36. To use a radio communication device dedicated for official duty in communicating criticisms of superior police officers while on duty,

37. To incite other officers to insubordination,

38. To fail to observe the provisions in Section 6-A or to disregard the warnings given to this effect, by marrying a person who has been established as a security threat or who is known to be of low moral conduct,

39. To ill-treat or torture any person,

40. To possess illegal firearms or ammunition,

41. To take on financial debt abroad by using his position as a police officer and without any justification, or to return without having paid his debts,

42. To give logistical support to illegal organisations, to abet in hiding its members from security forces, or to disseminate propaganda on behalf of the organisation or its members, to carry or possess symbols, signs, logos belonging to such organisations,

43. To have received a sanction five times in the past five years for making a habit of not paying one’s debts,

44. To conduct unlawful surveillance, to violate privacy of communication, to record unlawful surveillance, to fail to destroy records of unlawful surveillance or to fail to destroy lawful surveillance after the prescribed time limits, to share or otherwise distribute information obtained from unlawful surveillance, to destroy, alter or withhold evidence.

45. To access, alter or destroy electronic logs on personal data without being authorised; to share or distribute such information,

46. To share information with unauthorised persons about personal data discovered during the course of duty.”

31. The heaviest disciplinary penalty for civil servants is dismissal from public service, which permanently bars the person concerned from further employment in public service. The type of disciplinary misconduct that is sanctioned with this penalty is provided in Section 125 § E of the Public Service Act (Law no. 657) as follows:

“g. Shameful or unbecoming conduct that is incompatible with the reputation of official functions.”

32. Sections 131 §§ and 2 of the Public Service Act (Law no. 657) provide as follows:

“The commencement of criminal proceedings against a civil servant shall not suspend disciplinary proceedings arising out of the same facts.

Acquittal or conviction in the criminal proceedings shall not prevent the execution of disciplinary sanctions.”

33. Section 127 of the Public Service Act (Law no. 657) prescribes the following time-limits for the commencement of disciplinary proceedings:

“The following limitations shall apply, starting from the date when the authorities become aware of the impugned act or behaviour listed in section 125 of this Act ...

b) Six months for the sanction of dismissal from service.”

34. By a decision dated 13 January 2016 the Constitutional Court struck down the law which provided the statutory basis for the Disciplinary Regulations as unconstitutional, holding that only law emanating from parliament could prescribe disciplinary and criminal offences for civil servants according to the Constitution of Turkey, and that there could be no punishment without law. The Constitutional Court held that the statute which delegated law-making powers to the executive for circumscribing disciplinary offences and penalties applicable to the security forces did not specify with sufficient clarity the scope of disciplinary offences nor did it include safeguards against the discretionary powers of the executive. The mere reference to “the importance of the profession of the security” in the statute as a guideline for the executive did not fulfil the constitutional requirement of the principle of legal certainty relating to offences and penalties, as set forth in Article 38 of the Constitution. The Constitutional Court’s judgment thus rendered the disciplinary regulations in question null and void; this order took effect on 13 January 2017.

35. The Government provided the Court with sample decisions taken by disciplinary bodies pursuant to section 8 § 6 of the Disciplinary Regulations, as well as relevant Supreme Administrative Court judgments discussing the interplay between disciplinary law and criminal law. Police officers who have been subject to disciplinary proceedings have been dismissed from the police force on the grounds that they have committed one or more offences while criminal charges on the same offences were pending before the criminal courts. The disciplinary offences in question were fraud, defamation, murder, attempted robbery, rape, and sexual assault. In all these decisions, despite the fact that the authorities make references to the pending criminal investigation, they evaluate the conduct in question by using criminal nomenclature and contain considerations similar to the one in the present case.

36. The sample judgments of the 12th Chamber of the Supreme Administrative Court taken in 2010 and 2011 concern the issue of the interplay between disciplinary proceedings and criminal proceedings arising out of the same facts. The position of the administrative courts at the material time is to treat the two proceedings autonomously, as two spheres of law operating with distinct sets of principles in terms of procedure, burden of proof and the types of sanctions available. These judgments follow an identical approach in their reasoning by saying that administrative courts are not bound by a criminal court’s decision acquitting the accused on the same facts, because disciplinary sanctions punish the misconduct of a civil servant irrespective of his or her criminal liability.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

37. The applicant complains that his dismissal from the police force and the subsequent judgments of the administrative courts violated his right to be presumed innocent.

38. The applicant relied on Article 6 § 2 of the Convention, which provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

39. The Government contested that argument.

A. Admissibility

40. At the outset, the Court deems it appropriate to examine whether the applicant’s complaint is compatible with the provisions of the Convention, within the meaning of Article 35 § 3 (a) of the Convention.

41. Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. The Court has acknowledged in its case-law the existence of two aspects to the protection afforded by the presumption of innocence: a procedural aspect relating to the conduct of the criminal trial, and a second aspect which aims to ensure respect for the applicant’s established innocence in the context of subsequent proceedings where there is a link with the criminal proceedings which have ended with a result other than a conviction (see, generally, Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013). Under its first aspect, the principle of presumption of innocence prohibits public officials from making premature statements about the defendant’s guilt and acts as a procedural guarantee to ensure the fairness of the criminal trial itself. However, it is not limited to a procedural safeguard in criminal matters: its scope is broader and requires that no representative of the State should say that a person is guilty of an offence before his guilt has been established by a court (Konstas v. Greece, no. 53466/07, § 32, 24 May 2011). In that respect the presumption of innocence may be infringed not only in the context of the criminal trial, but also in separate civil, disciplinary or other proceedings that are conducted simultaneously with the criminal proceedings.

42. Regarding the first aspect of protection under Article 6 § 2, in Allen, cited above, § 93, the Grand Chamber reiterated that, viewed as a procedural guarantee in the context of a criminal trial, “the presumption of innocence imposes requirements in respect of, inter alia, ... premature expressions by the trial court or by other public officials of a defendant’s guilt”. The Court has previously held in this context that the presumption of innocence will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proven according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty (see, inter alia, Allenet de Ribemont v. France, no. 15175/89, § 35, Series A no. 308; Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X; A.L. v. Germany, no. 72758/01, § 31, 28 April 2005; and Caraian v. Romania, no. 34456/07, § 74, 23 June 2015). The scope of the protection under the first aspect of presumption of innocence therefore extends to all statements made by a public authority regardless of whether they have been pronounced in the confines of the criminal trial, in a different public setting or in other parallel judicial proceedings. Nevertheless, whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see, among others, Daktaras, cited above, § 43; and Caraian, cited above). The presumption of innocence, considered in the light of the general obligation of a fair criminal trial under Article 6 § 1, excludes a finding of guilt outside the criminal proceedings before the competent trial court, irrespective of the procedural safeguards in such parallel proceedings and notwithstanding general considerations of expediency (see Böhmer v. Germany, no. 37568/97, § 67, 3 October 2002). In this connection, the Court considers that the duty to refrain from making prejudicial or premature comments regarding a person’s guilt applies a fortiori to courts other than the one determining the criminal charge. The Court emphasises that the purpose of the right to be presumed innocent until proven guilty is not only to guarantee the fairness of the criminal trial from undue influences but also to protect a person’s reputation from unjustified brandings of guilt (see El Kaada v. Germany, no. 2130/10, § 42, 12 November 2015, and mutadis mutandis, Allen, cited above, § 94).

43. While the scope of the first aspect under Article 6 § 2 of the Convention covers the period in which a person is charged with a criminal offence until the criminal proceedings are final, the second aspect of the protection of presumption of innocence comes into play when the criminal proceedings end with a result other than a conviction, and requires that the person’s innocence vis-à-vis the criminal offence is not called into doubt in subsequent proceedings (see Allen, cited above, § 94).

44. In the present case, the Court notes that the applicant’s complaint concerns his dismissal from the police force and the way in which his objection concerning the alleged violation of his right to presumption of innocence was treated by the administrative courts reviewing his dismissal. In order to determine the applicability of Article 6 § 2 under its respective aspects in the present case, the Court deems it necessary to recall the sequence of events in the domestic proceedings. The Court observes that the disciplinary proceedings concerning the applicant’s dismissal ran parallel to the criminal proceedings against him. Both sets of proceedings were initiated against the applicant on suspicion that he had committed criminal offences. The Court further notes that the administrative courts reviewing the disciplinary sanction gave substantial consideration to whether the applicant had in fact committed the offences of false imprisonment, robbery and attempted rape with which he had been charged and in respect of which criminal proceedings against him were pending. In that respect, when the Samsun Administrative Court rendered its judgment on 29 September 2005, the criminal court had not yet given a decision concerning the criminal charges arising out of the same facts and concerning identical accusations that were the subject of the disciplinary proceedings. Likewise, on appeal, when the Supreme Administrative Court dismissed the applicant’s requests on 10 April 2007, the criminal proceedings were still pending before the Court of Cassation, which was in the course of reviewing the judgment of the first-instance criminal court of 21 March 2006, partly acquitting the applicant of the charges of false imprisonment and robbery and partly convicting him on the requalified charge of assault and battery. Therefore, when the administrative courts reviewed the applicant’s dismissal, no final judgment had yet been adopted in the criminal proceedings. In other words, the applicant’s initial right to be presumed innocent until proven guilty in the context of the criminal charges against him remained valid under the first aspect of Article 6 § 2 of the Convention. Having regard to the point in time when the impugned statement was made and the applicant’s complaint that he had been presumed guilty before his guilt was proven, the Court will confine its examination to the first aspect of Article 6 § 2 of the Convention. The Court notes in this connection that the subsequent developments in the criminal proceedings partly acquitting the applicant and discontinuing the proceedings on the charge of assault and battery are not relevant in its examination of the present application in so far as the impugned statements made by the Samsun Administrative Court preceded the partial acquittal and the discontinuance of the criminal proceedings. Therefore, the Court can assess under the first aspect, whether the reasoning adopted in the disciplinary proceedings, before the final decision in the criminal proceedings, violated the applicant’s right to be presumed innocent. As a result, Article 6 § 2 is applicable in the context of the disciplinary proceedings at issue. The application is therefore not incompatible ratione materiae with the provisions of the Convention.

45. Finally the Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

46. The applicant maintained that his dismissal from the police force and the subsequent judgments of the administrative courts amounted to a violation of his right to be presumed innocent in that by categorising his acts as attempted rape, false imprisonment and threatening with a weapon, they pronounced him guilty before he was convicted and despite his subsequent acquittal on those charges by the criminal court.

47. The Government argued that by virtue of section 131 of the Public Service Act, disciplinary proceedings were conducted independently and were distinct from criminal proceedings. The Government also drew the Court’s attention to section 127 of the Public Service Act, which prescribed time-limits for the commencement of disciplinary proceedings. In this respect, the Government noted that it was possible for disciplinary proceedings to be suspended until criminal proceedings were concluded, as long as the time-limits permitted. However, the Government argued that where existing evidence was found to be sufficient a disciplinary decision may nevertheless be taken.

48. The Government noted that disciplinary bodies were allowed to resort to the criminal investigation file and admit evidence that was otherwise inadmissible in criminal proceedings, and to come to a different assessment of the facts than the criminal courts. The Government also noted that disciplinary proceedings were subject to judicial review by the administrative courts, which could revoke an administrative decision if it did not comply with the law or if the proceedings had been unfair.

49. The Government argued that the disciplinary bodies in the present application had conducted a separate investigation by hearing the applicant, the complainant, and witnesses, and also by giving due regard to the criminal investigation file, and had considered the evidence before them to be sufficient to conclude that the applicant had committed an act which carried a disciplinary sanction under section 8 § 6 of the Disciplinary Regulations.

50. The Government further argued that the disciplinary bodies had not drawn any conclusion in relation to the applicant’s conduct from the standpoint of criminal law.

2. The Court’s assessment

51. The Court emphasises that there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question (see, among others, Matijašević v. Serbia, no. 23037/04, § 48, ECHR 2006-X; Garycki v. Poland, no. 14348/02, § 71, 6 February 2007; and Wojciechowski v. Poland, no. 5422/04, § 54, 9 December 2008). The latter infringe the presumption of innocence, whereas the former have been regarded as unobjectionable in various situations examined by the Court (see, among others, El Kaada, cited above, § 54, and the cases cited therein).

52. In previous cases similar to the present one, the Court has held that it is neither the purpose nor the effect of the provisions of Article 6 § 2 to prevent the authorities vested with disciplinary power from imposing sanctions on a civil servant for acts with which he has been charged in criminal proceedings, where such misconduct has been duly established (see Moullet v. France (dec.), no. 27521/04, 13 September 2007, and Allen, cited above, § 124). In that respect, the Court reiterates that the Convention does not preclude that an act may give rise to both criminal and disciplinary proceedings, or that two sets of proceedings may be pursued in parallel. The Court has held in this context that the imposition of civil or other forms liability on the basis of a less strict burden of proof in parallel proceedings is not incompatible per se with the presumption of innocence (see, for example, C. v. the United Kingdom, no. 11882/85, Commission decision of 7 October 1987, DR 54, p. 162, and Erkol v. Turkey, no. 50172/06, § 37, 19 April 2011). Moreover, the guarantees of Article 6 § 2 of the Convention should not be read in a manner that implies an obligation on the part of States to stay disciplinary proceedings pending the outcome of the criminal trial. Article 6 § 2 of the Convention safeguards first and foremost the way in which the accused is treated in the context of criminal proceedings by public authorities. It also places an obligation on judicial authorities in parallel or subsequent proceedings to stay within their respective fora and refrain from commenting on the person’s criminal guilt when no such guilt has been established by the competent court. Thus, in the absence of a final criminal conviction, if the disciplinary decision were to contain a statement imputing criminal liability to the applicant for the misconduct alleged against him in the disciplinary proceedings, it would raise an issue under Article 6 § 2 (see Moullet, cited above; Çelik (Bozkurt) v. Turkey, no. 34388/05, § 32, 12 April 2011; Erkol, cited above, §§ 38-41; Tripon v. Romania (dec.) no. 27062/04 § 25, CEDH, 7 February 2012; Teodor v. Romania, no. 46878/06, § 40, 4 June 2013; Milojević v. Serbia (dec.), nos. 43519/07 and 2 others, § 37, 3 September 2013; and, mutatis mutandis, Y v. Norway, no. 56568/00, § 42, ECHR 2003-II (extracts)). The Court has repeatedly stressed the importance of the choice of words by public authorities both in the context of the criminal trial and in parallel or subsequent proceedings (see, among others, Daktaras, cited above; Böhmer, cited above, § 56, and Garycki, cited above, § 70). Where the criminal proceedings are pending and have not yet resulted with a final conviction or where they have ended with a result other than a conviction, any official statement that calls into question the person’s presumed or established innocence may fall foul of the presumption of innocence.

53. In the present case, the Samsun Administrative Court upheld the applicant’s dismissal from the police force on the grounds that he had committed the acts of false imprisonment, robbery and attempted rape. Although criminal proceedings concerning the same accusations arising out of the same facts were pending against the applicant, the Samsun Administrative Court rendered a decision which, by the wording used in its reasoning, unequivocally pronounced the applicant guilty on those charges. Furthermore, the impugned decision contained no reservation or qualification that could lead the reader to conclude that the pronouncement of the applicant’s guilt was confined strictly to the disciplinary sphere (unlike the positions in Moullet, cited above, and Šikić v. Croatia, no. 9143/08, § 55, 15 July 2010, and more recently in Hrdalo v. Croatia, no. 23272/07, §§ 54-55, 27 September 2011).

54. In the absence of any reasoning that would allow a reader to discern how the disciplinary and judicial authorities established and evaluated the facts from the perspective of disciplinary law, that is the compatibility of the applicant’s conduct with work discipline and the requirements of civil service, the lines separating disciplinary liability from criminal liability become theoretical and illusory. In that respect, the Court reiterates that no authority may treat a person as guilty of a criminal offence unless he has been convicted by the competent court (see X v. Austria, no. 9295/81, Commission decision of 6 October 1992, Decisions and Reports (D.R.)).

55. In this connection, the Court notes the ambiguity of section 8 § 6 of the Disciplinary Regulations which calls for a police officer’s dismissal from service on grounds of certain acts, conduct, and behaviour, all of which constitute criminal offences under criminal law. It is not clear whether these offences refer directly to the corresponding offences under the Criminal Code, or whether they concern separate and independent “disciplinary offences”, or whether they attract a different standard of proof or entail different constitutive elements from their criminal counterparts. The indication by the Supreme Administrative Court that “a conviction or acquittal by criminal courts has no influence or effect on the disciplinary proceedings” does not shed light on any of these questions. The same is true for the sample administrative court decisions submitted by the Government, since they do not contain any principles by which an accused’s right to be presumed innocent until proven guilty by a competent court could be safeguarded in disciplinary proceedings that are conducted simultaneously or subsequently to criminal proceedings.

56. The Court finds that the Samsun Administrative Court, in upholding the decision of the Supreme Administrative Council, did pronounce the applicant’s guilt before it had been proved according to law and that, moreover, on 10 April 2007 the Supreme Administrative Court failed to rectify the previous court’s wording on appeal despite the duty to observe the applicant’s right to be presumed innocent in respect of the criminal proceedings which were still pending (unlike the position in Vanjak v. Croatia, no. 29889/04, § 69, 14 January 2010). Having regard to the explicit and unqualified character of these statements, the Court finds that they amounted to a pronouncement on the applicant’s guilt before he was proved guilty according to law (contrast C. v. the United Kingdom, cited above, and Nikolova and Vandova v. Bulgaria, no. 20688/04, § 100, 17 December 2013). The Court underlines that there can be no justification for a court of law to make a premature pronouncement of this kind (see Garycki, cited above, § 71). The Court, however, finds it relevant to underline that its findings do not imply that the applicant’s dismissal from the police force as a consequence of the incident on 3 July 2004 was unjustified, as the Court’s examination is confined to the grounds relied on by the disciplinary and judicial authorities and the language they used, and does not concern the question whether the outcome of the disciplinary proceedings is as such compatible with the guarantees enshrined in Article 6 § 2 (compare Jakumas v. Lithuania, no. 6924/02, § 57, 18 July 2006).

57. There has accordingly been a violation of Article 6 § 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

58. The applicant complained that the disciplinary proceedings against him had been unfair.

59. The Government contested that argument.

60. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

61. However, having regard to the finding relating to Article 6 § 2 (see paragraphs 56 and 57 above), the Court considers that it is not necessary to examine this issue separately.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

62. On 23 May 2014, the applicant, in his reply to the observations of the Government on the admissibility and merits of the case, complained for the first time, under Articles 3 and 7 of the Convention, that the impugned decisions lacked a substantive legal basis and constituted an attack on his honour, dignity and reputation.

63. The Court observes that these complaints were not included in the initial application, but were raised in the applicant’s observations of 23 May 2014. The new complaints are related to the same facts in the present case, but do not constitute an elaboration of the applicant’s original complaints to the Court that was communicated to the Government.

64. In this connection, the Court recalls that at the material time, the running of the six-month time-limit imposed by Article 35 § 1 of the Convention was, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints to be made. As regards complaints not included in the initial application, the running of the six-month time-limit is not interrupted until the date when the complaint is first submitted to the Court (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). When the applicant introduced his application to the Court on 4 October 2007, he complained solely under Article 6 §§ 1 and 2 of the Convention and did not make any reference, explicit or implicit, to Articles 3 and 7 of the Convention. In these circumstances, the Court finds it established that the applicant did not raise these new complaints that concern the same facts until 23 May 2014, that is almost seven years after the exhaustion of domestic remedies; therefore, it concludes that these complaints are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

66. The applicant claimed 199,200 euros (EUR) in respect of pecuniary damage, and EUR 200,000 in respect of non-pecuniary damage.

67. The Government argued that there was no causal link between the alleged violation and the claimed pecuniary damage and that the applicant had failed to prove that he had suffered non-pecuniary damage as a result of the alleged violation.

68. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violation found which cannot be made good by the Court’s mere finding of a violation. Nevertheless, the Court considers the amount claimed by the applicant under this heading to be excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,500 in respect of non-pecuniary damage.

B. Costs and expenses

69. The applicant claimed reimbursement of legal costs and expenses totaling 7,618 Turkish liras (TRY), approximately EUR 2,450, in respect of the following items:

(a) TRY 5,000 for his lawyer’s work in the proceedings before the national criminal courts;

(b) TRY 2,000 for his lawyer’s work in the proceedings before the national administrative courts;

70. The Government stated that the amount claimed was exaggerated in comparison with fees earned by Turkish lawyers in the domestic courts and had not been properly justified.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, legal costs are only recoverable to the extent that they relate to the violation found. In this connection, the Court rejects item (a) since those fees were incurred in relation to the criminal proceedings, which do not relate to the violation found. The Court also rejects item (b) as the applicant failed to submit documentary evidence, such as a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Concerning item (c), the applicant submitted to the court a number of documents showing payments made by the applicant in respect of fees for the national courts, including those for the reopening of proceedings at the national level in 2013, the Court notes that the applicant’s claims were only partially successful before it. Accordingly, it considers it reasonable to award the applicant the sum of EUR 169.

C. Default interest

72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 6 §§ 1 and 2 of the Convention concerning the applicant’s right to the presumption of innocence admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 2 of the Convention;

3. Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage and EUR 169 (one hundred and sixty-nine euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent state at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Paul Lemmens
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KEMAL COSKUN v. TURKEY - 45028/07 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)) [2017] ECHR 281 (28 March 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/281.html Cite as: [2017] ECHR 281, CE:ECHR:2017:0328JUD004502807, ECLI:CE:ECHR:2017:0328JUD004502807