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You are here: BAILII >> Databases >> European Court of Human Rights >> KAYA AND GUL v. TURKEY - 47988/09 (Judgment : Violation of Freedom of assembly and association (Article 11-1 - Freedom of association) Violation of Article 13...) [2017] ECHR 932 (24 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/932.html Cite as: ECLI:CE:ECHR:2017:1024JUD004798809, CE:ECHR:2017:1024JUD004798809, [2017] ECHR 932

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SECOND SECTION

 

 

 

 

 

 

 

 

CASE OF KAYA AND GÜL v. TURKEY

 

(Applications nos. 47988/09 and 47989/09)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

24 October 2017

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Kaya and Gül v. Turkey,

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

          Julia Laffranque, President,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 3 October 2017,

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

PROCEDURE

1.  The case originated in two applications (nos. 47988/09 and 47989/09) 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 two Turkish nationals, Mr Yusuf Kaya and Mr Mehmet Sabri Gül (“the applicants”), on 25 August 2009.

2.  The applicants were represented by Ms. S. C. Erkat, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 26 April 2010 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1961 and 1967 respectively and live in Mersin and Diyarbakır.

5.  The applicants were civil servants for tax offices attached to the Ministry of Finance in Mersin and Diyarbakır. At the material time they were members of the local branch of the trade union Büro Emekçileri, which is affiliated to Trades Union Confederation of Public Employees (Kamu Emekçileri Sendikaları Konfederasyonu-“KESK”).

6.  In March and April 2009, the applicants were informed of the disciplinary investigations that were initiated against them for having participated in a statement to the press organised by the trade union of which they were members and were invited to send their defence submissions.

7.   Subsequently, the disciplinary sanctions of warning and reprimand were imposed on the applicants for their participation in the aforementioned trade union activities under Section 125 of the Law no. 657 on Civil Servants.

8.  The applicants objected to these decisions and requested their annulment.

9.  In May 2009 the Disciplinary Board of the tax offices dismissed the applicants’ objections considering that the contested decisions were in accordance with law and there were no grounds for annulment.

II.  RELEVANT DOMESTIC LAW

10.  A full description of relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-17, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-21, 24 March 2015).

THE LAW

I.  JOINDER OF THE APPLICATIONS

11.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

12.  The applicants complained that the disciplinary sanctions of warning and reprimand that were imposed on them for their participation in trade union activities, had infringed their rights under the Convention. In this regard, they relied on Articles 10 and 11 of the Convention.

13.  The Court considers that the applicants’ complaints fall to be examined under Article 11 of the Convention alone. Article 11 of the Convention reads 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.”

14.  The Government contested the applicants’ arguments.

15.  The Court notes that in the case of Karaçay v. Turkey (no. 6615/03, 27 March 2007), which raised issues similar to those in the present case, it observed that the sanction complained of, although very light, had been such as to dissuade trade union members from legitimate participation in strikes or other trade union actions to defend the interests of their members. Accordingly it found that the warning given to the applicant had not been necessary in a democratic society and there had been a breach of applicant’s right to freedom to demonstrate (ibid § 37; see mutadis mutandis Kaya and Seyhan v. Turkey, no. 30946/04, § 30, 15 September 2009; and Şişman and Others v. Turkey, no. 1305/05, § 34, 27 September 2011).

16.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present cases.

17.  Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 11 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

18.  The applicants complained that no remedy had been available to them under the domestic law in force at relevant time, by which to challenge the disciplinary sanctions that were imposed on them. They relied on Articles 6 and 13 of the Convention. The Court notes that this part of the application should be examined from the standpoint of Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

19.  The Government contested that argument.

20.  The Court observes that the legislation in force at the relevant time precluded any application to the administrative courts for the purpose of challenging the lawfulness of the disciplinary sanctions of warning and reprimand imposed pursuant to Section 125 of the Law no. 657.

21.  The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of lack of an effective remedy under Turkish law, whereby the applicants could have challenged the disciplinary sanctions of warning and reprimand imposed on them (Karaçay, cited above, § 44; Kaya and Seyhan, cited above, § 41; and İsmail Sezer v. Turkey, no. 36807/07, § 66, 24 March 2015). It finds no reason to depart from that conclusion in the present cases.

22.  Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 13 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the applications admissible;

 

3.  Holds that there has been a violation of Article 11 of the Convention;

 

4.  Holds that there has been a violation of Article 13 of the Convention.

Done in English, and notified in writing on 24 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Julia Laffranque
Deputy Registrar                                                                       President