CASE OF İHSAN AY v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
4. The applicant was born in 1957 and lives in Diyarbakır. 5. On 10 December 1985 he began working as a biology teacher at a private tutoring centre (dershane) in Diyarbakır. Between December 1985 and July 1999 he worked there on a contractual basis. The renewal of his contracts was subject to the approval of the Director of the National Education Department attached to the Diyarbakır Governor’s Office. 6. On 13 July 1999 the Governor’s Office decided not to renew the applicant’s contract, on the strength of a security investigation conducted into him. 7. On 21 July 1999 he was informed by the head of the tutoring centre that his contract was being terminated. 8. On 1 September 1999 the applicant lodged a claim with the Diyarbakır Administrative Court, challenging the termination of his contract. In his application, he stated, inter alia, that he had not been informed of the reasons for his dismissal and that the administrative authorities had failed to respect the established case-law of the Supreme Administrative Court, according to which security investigations could not be used as the sole basis of an administrative decision, as their content was confidential. The applicant submitted that he had been working at the private tutoring centre since its establishment in 1985 and that his right to work was breached on account of this unlawful administrative decision. The applicant claimed that he was deprived of his livelihood as he did not have any other work and that the administrative authorities’ decisions had irreversible consequences for his life. 9. On 30 December 1999 the Diyarbakır Administrative Court annulled the Governor’s Office’s decision. In its judgment, the court noted that the Governor’s Office had decided to terminate the applicant’s contract on the basis of a security investigation conducted by the office of the Regional Governor of the state-of-emergency (Olağanüstü Hal Bölge Valiliği). The court further noted that the administrative authorities had been requested to provide information on the reasons for the termination of his contract. In a document sent to the court by the Governor’s Office, it was stated that the applicant had been involved in a number of ideological activities before 1980; that the Karşıyaka police had instituted proceedings against him for having committed an offence against the “national legal personality of the State”; that he had been sentenced to ten months’ imprisonment; and that he had been the representative of the Diyarbakır branch of Eğit-Sen (a trade union) in 1991. The court considered that the applicant had worked in State schools for a number of years and had been known to the administrative authorities when he began working at the private tutoring centre. It therefore concluded that the decision to terminate his contract, which had been taken on the basis of intelligence information known to the authorities from the outset, had been unlawful. 10. On 20 March 2000 the Diyarbakır Governor’s Office appealed against the judgment of 30 December 1999. In the appeal, it was noted that the applicant had been involved in illegal activities and therefore did not possess the right qualities to be a teacher. It was also stated that the administrative authorities, taking into consideration the particularities of the country and the region concerned, as well as the nature and the sensitivity of the post, had found that there was no public interest in keeping him employed in his post. 11. On 17 September 2001 the Supreme Administrative Court quashed the first-instance court’s judgment. It noted that the Regional Governor of the state-of-emergency had conducted a security investigation into the applicant. That investigation had revealed that he had been involved in several ideological activities before 1980; that a criminal investigation had been initiated against him for having committed an offence against the “national legal personality of the State”; and that he had been sentenced to ten months’ imprisonment. These were the reasons for which he had been dismissed from his post. The Supreme Administrative Court held that the decision dismissing the applicant following the security investigation had been lawful, since he had been sentenced to imprisonment for having committed a crime against the State and there was information to suggest that he had been involved in ideological activities for illegal organisations. The Supreme Administrative Court also had regard to the particularities of the region where he had worked. 12. On an unspecified date the applicant’s representative applied to the Supreme Administrative Court, requesting rectification of its decision of 17 September 2001. In his request, he maintained that the applicant had been charged with being a member of an organisation whose aim was to establish the domination of a particular social class and for disseminating propaganda, under Articles 141 and 142 of the Criminal Code (Law no. 765) respectively, and had been sentenced to ten months’ imprisonment for his activities before 1980. He further contended that the Articles in question had been repealed in 1991, and that on 22 August of the same year the trial court had decided to overturn the applicant’s criminal conviction and erase his criminal record. He argued that dismissing the applicant on the basis of his erased criminal record and the findings of a security investigation which were not publicly accessible had been unlawful and in breach of his right to a fair trial under the Convention. 13. On 8 May 2002 the Supreme Administrative Court dismissed his request holding that his submissions could not be the basis of a rectification of decision. 14. On 31 December 2002 the Diyarbakır Administrative Court dismissed the applicant’s case, taking into account the Supreme Administrative Court’s decision and referring to the reasoning in the latter’s judgment. 15. The applicant appealed. In his appeal, his representative repeated the submissions put forward in his request for rectification of the Supreme Administrative Court’s decision. 16. On 20 January 2004 the Supreme Administrative Court dismissed the applicant’s appeal and upheld the judgment of 31 December 2002, holding that the latter was in accordance with the law.