CASE OF GÜÇ v. TURKEY
No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1960 and lives in Giresun. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. On 8 February 2006 the applicant, a caretaker employed at the Public Education Centre (Halk Eğitim Merkezi) in Giresun, was taken into police custody on suspicion of child molestation, after being caught in an allegedly indecent position with X., a 9-year-old pupil at the primary school located in the same building as the Public Education Centre. 8. On 8 March 2006 the Espiye Public Prosecutor lodged an indictment with the Espiye Criminal Court of First Instance, charging the applicant with the sexual abuse, sexual assault and unlawful detention of a minor, pursuant to Articles 103 § 1 (a), 109 § 3 (f) (5) and 102 §§ 1 and 3 (a) of the Turkish Criminal Code. 9. During the ensuing criminal proceedings, the Espiye Criminal Court of First Instance heard statements from the applicant, the parents of X., the psychiatrist who had interviewed the girl after the incident, and the teachers and personnel at the Public Education Centre and the neighbouring primary school, including the teacher E.U., who was the sole eyewitness to the incident. Denying the allegations against him, the applicant stated that on the morning in question, he had entered one of the classrooms in the building for cleaning purposes, where the alleged victim was already present with another pupil. While he was busy cleaning, X. had asked for a simit (a type of bread roll) and had attempted to hug him, as a result of which gesture he had lost his balance and fallen onto a desk with X. It was at that point that the teacher E.U. had entered the classroom. 10. E.U., on the other hand, testified before the trial court that as she opened the door of the classroom in question, she saw the applicant sitting on a desk in the dark with his legs apart, hugging X. who was sitting on his lap, facing the blackboard. Within a matter of seconds, upon seeing her, the applicant threw X. away in panic. E.U. stated that while she had never witnessed similar behaviour by the applicant before, the scene she had seen on the day in question looked suspicious. She also confirmed that there was another pupil in the classroom at the time. 11. S.P., who worked in the same primary school and was also the uncle of X.’s mother, asserted before the court that although he had never witnessed any suspicious behaviour on the part of the applicant, he had heard a colleague, İ.K., say that the applicant had engaged in indecent behaviour towards some pupils at the school where he had worked previously. However, İ.K., who was the deputy principal at the applicant’s previous school, denied giving S.P. any such information concerning the applicant or hearing any adverse rumours or complaints about him for that matter. 12. X.’s father alleged that according to the information he had received from M.Ö. and M.K. ‒ respectively an employee and the manager at the Public Education Centre ‒ the applicant had been dismissed from his previous job for similar behaviour. M.Ö. denied this allegation, but M.K. confirmed that the above-mentioned S.P. had given him this information, although he himself had never witnessed any indecent behaviour by the applicant. 13. Another witness, B.A., confirmed that the applicant had apologised to him following the incident. There is no information in the case-file as to the exact content of this apology. 14. The psychiatrist who interviewed X. after the incident reported that the latter lacked the mental capacity to comprehend and recount what might have taken place on the relevant day and, for that reason, it would be futile, and possibly harmful for her well-being, for the trial court to question her. 15. On the basis of all the evidence before it, on 18 December 2008 the Espiye Criminal Court of First Instance ordered the applicant’s acquittal, holding that it was not possible to establish beyond all reasonable doubt that he had committed the sexual acts forming the basis of the charge. The court observed that the statements of the sole eyewitness were contradictory in parts and that they included her personal interpretation of what had actually taken place on the relevant morning. It added that, despite E.U.’s allegation that the applicant had thrown X. to one side upon her entry in the room, no wounds or bruises had been detected on the girl’s body. 16. On 13 January 2009 the acquittal judgment became final in the absence of any appeal. 17. Parallel to the criminal proceedings pending before the Espiye Criminal Court of First Instance, a disciplinary investigation was conducted against the applicant in relation to allegations of harassment. 18. The disciplinary investigation was carried out by two inspectors who took statements from X.’s father, from M.K., the manager of the Public Education Centre, from B.A., a teacher at the primary school, from A.T., the principal of the primary school, and from the applicant, who was being held in detention in relation to the criminal proceedings at the time. The inspectors also took two separate statements from the sole eyewitness, the teacher E.U., under oath and took into account a report from the guidance counsellors of the primary school regarding the psychological and physical development of the minor X. That report, dated 7 January 2003, described the physical and social developmental attributes of the girl as weak and very timid, respectively. The medical diagnosis was stated as autism. 19. The investigation report which was issued at the end of the disciplinary investigation on 3 April 2006 found the allegations of harassment against the applicant to be well-founded and recommended the dismissal of the applicant from the civil service on the grounds that his conduct constituted “shameful and disgraceful conduct incompatible with the civil service” as provided under section 125 § E (g) of Law no. 657. In coming to this conclusion, the inspectors noted the following: “...The eyewitness, E.U., reported having seen the applicant in a position which made her suspect that he had been in the course of sexually harassing the student, [X.] She explained that the following facts ‒ in particular, the room being dark as a result of the lights having been turned off, the applicant sitting at the desk right next to the door with his legs open with the minor on his lap and the desk in front having been pushed further away, coupled with the fact that he had been caressing the body of the minor and holding her tight around her waist ‒ had led her to conclude that [the applicant] had been attempting to harass her. [She stated that] what she witnessed did not look like a regular display of affection and when she had entered the room, he had thrown the child off him in panic. In his statement, [the applicant] stated that the minor had attempted to hug him while he was cleaning the floor and that, as a result of that gesture he had lost his balance and the minor had sat on his lap. He added that when E.U. entered the room, he was trying to get the minor off him. [The applicant’s] statement that he had fallen onto a desk with the minor as a result of the latter trying to hug him corroborates E.U.’s version of the events. However, the part about him having lost his balance as a result of the minor’s attempt to hug him would be quite unusual given the physical attributes of the minor in question. Moreover, the consistent statements of E.U., taken under oath, who as a mother and an educator seems to have suffered a great deal of emotional distress from these events, give the impression that the allegations against the applicant are well-founded. [...] The event has shocked and distressed the town community as well as the school... The severity of this event is further exacerbated by the fact that the student in question is a mentally disabled child, ... unable to express or defend herself...This is a disgraceful thing for a civil servant. [The event] has also given rise to a criminal investigation instigated by the Espiye Public Prosecutor’s office where [the applicant], is accused of sexually abusing a minor who was born on [...] February 1993 and who was unable to defend herself due to her mental incapacity, and to the remanding in custody of [the applicant]. ...we are of the opinion that [the applicant] has harassed [X.] and that this conduct, which is proven, falls under situations provided for in section 125 § E (g) of law no. 657, that is to say, “shameful and disgraceful conduct that is incompatible with the civil service”. 20. On 25 May 2006 the applicant submitted his written defence to the Supreme Disciplinary Council of the Ministry of Education (“the Supreme Disciplinary Council”). He requested at the outset that the investigation be postponed until the criminal proceedings against him on the same allegations had been finalised. Furthermore, denying all accusations, he challenged E.U.’s statements as being wholly subjective and distorting the facts, bearing particularly in mind that the whole incident had taken place within a matter of seconds, as she too had acknowledged, which did not realistically allow her to make the detailed observations that she had recounted to the authorities. He added that it was not logical that he would have committed the alleged act in the presence of another pupil in the classroom right before the start of the classes. 21. On 5 July 2006 the Supreme Disciplinary Council issued the following decision in relation to the applicant, in so far as relevant: “Upon examination of the file ... and of the defence statement duly taken [from the applicant], the following has been decided: On the basis of the information and documents in the file, the veracity of the act [harassment of X.] attributed to the applicant has been conclusively established... For this reason, it has been decided unanimously to accept the proposal to dismiss the applicant from the civil service in accordance with section 125 § E (g) of the Law no. 657 [on Civil Servants], ...” 22. On 30 October 2006 the applicant objected to the Supreme Disciplinary Council’s decision before the Ordu Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed the act of sexual harassment of a minor, which is a criminal act, while criminal proceedings were still pending in respect of that self-same allegation violated his right to the presumption of innocence. 23. On 3 July 2007 the Ordu Administrative Court dismissed the applicant’s objection on the following grounds: “The case concerns the dismissal of the [applicant,], who worked as a caretaker, on the basis of the allegations that he harassed [X.] on the premises of the primary school. Section 125 E-g of Law no. 657 provides that shameful and disgraceful conduct that is incompatible with the civil service requires dismissal from the civil service. Section 131 of the same Law also provides that the commencement of criminal proceedings against a civil servant shall not suspend disciplinary proceedings arising out of the same facts and that acquittal or conviction in the criminal proceedings shall not prevent the execution of disciplinary sanctions.” [...] Although it has been argued that the sole eyewitness’s version of the events cannot be taken as a conclusive basis on which to deem that the applicant committed the act imputed to him, on the basis of the evidence in the case-file and in consideration of the position in which the applicant was found in the classroom, as well as the fact that the classroom’s door had been shut and the lights had been turned off and the room was therefore dark as it was also very early in the morning and it was raining [...], having further regard to the statement by the principal of the neighbouring primary school, A.T., during the criminal proceedings acknowledging that the applicant had apologised to him after the incident and that he had also heard rumours about the applicant’s similar indecent behaviour in other schools where he had previously worked, the applicant’s argument has not been found to be credible. 24. This statement by A.T., referred to in the Ordu Administrative Court judgment, is not mentioned in the judgment of the Espiye Criminal Court of First Instance. 25. On 28 July 2007 the applicant appealed against the decision of the Ordu Administrative Court, which he considered to be based on groundless accusations. He argued firstly that, in circumstances where the act forming the basis of criminal and disciplinary investigations was one and the same, the criminal proceedings would be better placed to shed light on the circumstances and to arrive at an accurate conclusion regarding the facts than would be those of the disciplinary bodies, whose findings would be at best hypothetical. He pointed out that the administrative court had ignored the presence of another pupil in the classroom at the time of the incident, as well as his explanation that the door had been shut as a result of the draught from the open window. The administrative court had similarly overlooked his service record (sicil dosyası) and the fact that it made no mention of any allegations of misconduct in his previous post, which would be unimaginable if he had really been dismissed from that post for indecent behaviour. He also referred in this connection to the statements of İ.K., the deputy principal at the previous school, denying any such allegations of indecent behaviour. 26. On 17 November 2009 the Supreme Administrative Court dismissed the applicant’s appeal, endorsing the first-instance court’s reasoning and not mentioning the acquittal judgment which had been delivered by the Espiye Criminal Court of First Instance in the meantime. 27. On 7 July 2010 the Supreme Administrative Court rejected the applicant’s rectification request. 28. On 27 May 2013, that is to say after lodging his complaint with the Court, the applicant brought proceedings against the Ministry of Education and requested the reopening of the proceedings concerning his dismissal from the civil service. The applicant relied on the Espiye Criminal Court of First Instance’s final judgment of 18 December 2008, which acquitted him of the charges of sexual abuse, sexual assault and the unlawful detention of a minor, and argued before the Ordu Administrative Court that his right to the 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. On 24 October 2013, the Ordu Administrative Court dismissed the case, holding that the arguments put forward by the applicant for reopening proceedings did not fall within the exhaustive list of permissible grounds for this extraordinary remedy. 29. In their observations on 14 March 2014, the Government informed the Court that appeal proceedings were pending before the Supreme Administrative Court.