CASE OF CELIK (BOZKURT) v. TURKEY
Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
5. The applicant was born in 1977 and lives in Istanbul. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 15 June 2000 the applicant was charged with the offence of membership of Hizbullah, a proscribed organisation in Turkey. 8. While the criminal proceedings against the applicant were continuing before the Diyarbakır State Security Court, Law no. 4616 entered into force on 22 December 2000. Law no. 4616 provides for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999, without reaching a definitive finding as to guilt. 9. On 13 March 2001 the Diyarbakır State Security Court considered that there was no evidence to show that the applicant had been a member of the illegal organisation or that she had carried out “any activities on behalf of the illegal organisation in an active and continuous manner”. According to the Diyarbakır State Security Court, the applicant's activities “had remained within the scope of the offence of aiding and abetting the illegal organisation”, which was one of the offences in respect of which Law No. 4616 was applicable. The Diyarbakır State Security Court thus suspended the criminal proceedings against the applicant. 10. In the meantime, on 4 October 2000, that is before the criminal proceedings were suspended, the applicant was dismissed from her post as a primary school teacher because the Ministry of Education considered that the evidence in the possession of the prosecuting authorities showed that she was a member of the illegal organisation. 11. The applicant challenged her dismissal by bringing a case against the Ministry of Education before the Diyarbakır Administrative Court on 3 November 2000. 12. On 7 March 2002 the Diyarbakır Administrative Court rejected the applicant's request for the Ministry's decision dismissing her from her post to be quashed. In its decision the Diyarbakır Administrative Court referred to the Diyarbakır State Security Court's above-mentioned decision of 13 March 2001, and held that the dismissal of the applicant “whose criminal activities were deemed in the criminal proceedings to constitute the offence of aiding and abetting” had been lawful. 13. The appeal lodged by the applicant against the Administrative Court decision was dismissed by the Supreme Administrative Court on 12 November 2004. The Supreme Court decision was notified to the applicant on 16 March 2005. 14. On various subsequent dates the applicant made job applications to the education authorities. One of the applications she made, on 13 February 2008, was rejected by the local education authority in Istanbul on the basis of the Diyarbakır State Security Court decision of 13 March 2001. 15. According to an official document dated 22 February 2008, the applicant has no criminal record. 16. Law No. 4616, in so far as relevant, provides as follows: “4. In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years: - where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended; - where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended. If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached. In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated. ...”