YILDIZ v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Recep Yıldız, is a Turkish national who was born in 1978 and lives in Rize. He was represented before the Court by Mr U. Ateş, a lawyer practising in Ankara. 3. On 14 July 2005, in connection with a police investigation into the alleged activities of a drug-trafficking operation, large quantities of heroin were seized in Küçükçekmece (a suburb of Istanbul) and a number of suspects were arrested. 4. On 28 August 2005 a police officer who had not been involved in that operation told his superior that certain police officers, including the applicant, had been offered money in exchange for leaving one of the suspects out of the investigation. He further alleged that some police officers in the unit had each received the sum of 1,000 euros (EUR) from the applicant in return for their turning a blind eye. The police officer’s superior prepared a report to that effect and initiated a disciplinary investigation concerning the allegations of bribery. 5. On the basis of the findings of the investigation concerning those allegations, the investigators in charge of the disciplinary investigation lodged a complaint with a public prosecutor and asked for a criminal investigation to be instigated against those police officers, including the applicant. 6. Accordingly, on 23 March 2006 the applicant was charged with bribery. A criminal trial was opened in the Istanbul Assize Court. 7. After hearing witnesses and assessing the evidence before it, the Istanbul Assize Court held that the accusations concerning the applicant and the co-accused did not go beyond hearsay and that there was nothing in the case file that proved the accused persons’ guilt. It therefore acquitted the applicant and his co-accused of bribery on 29 September 2006. 8. On 8 June 2007, on the basis of the findings of the disciplinary investigation, two sanctions were imposed on the applicant which deferred his advancement to a higher rank for a period of 16 months and of 24 months respectively. The relevant parts of the decision read: “Notwithstanding the fact that the charges against the accused police officers were not proved and that they have consequently been acquitted in the criminal proceedings and that the legal constituents of the crime of bribery were lacking, under section 131 of the Civil Servants Act the opening of criminal proceedings against a civil servant cannot delay disciplinary proceedings, which can be conducted in parallel with such proceedings. Furthermore, exoneration of criminal liability does not prevent the imposition of disciplinary sanctions. In the light of the foregoing, bearing in mind the fact that the report in question was signed by the supervising police officer and four senior officers and that the statement of Ş.G. confirming the veracity of certain aspects of the allegations and the statement of [police officer] N.İ. confirming the statement of the latter ... [the disciplinary board] considers that the applicant’s conduct constituted the disciplinary offence in question. Notwithstanding the fact that the misconduct in question cannot be characterised as criminal, it was still inappropriate and was of such a nature as to diminish the respect and the trust associated with the functions of a police officer ... Therefore, the applicant’s conduct amounts to “acts and conduct that discredit the respect and trust associated with the official function of a police officer”, ... as well as to “neglect of duty” in so far as the applicant left one suspect out of the investigation, despite there being strong suspicions [that he had been involved] ...” 9. On 4 August 2007 the applicant lodged a claim against the Ministry of Interior with the Kastamonu Administrative Court, challenging the disciplinary sanctions imposed on him. 10. On 30 November 2007 the court set aside both disciplinary punishments, holding that the findings of the investigation giving rise to the impugned disciplinary action had contained no proof beyond hearsay and accordingly concluding that the allegations were unfounded. 11. The Office of the Istanbul Governor lodged an appeal with the Supreme Administrative Court against the decision of the Kastamonu Administrative Court; the appeal was dismissed and the decision of 30 November 2007 was upheld and became final on 21 March 2013. 12. Meanwhile, on 15 December 2005 the applicant underwent an appraisal of his work. The appraisal was carried out by his immediate superior and signed by a senior police chief. He was given an unsatisfactory score of 56 out of 100 and received a disciplinary warning to this effect on 3 March 2006. The warning briefly stated that the applicant’s appraisal score was unsatisfactory and that unless he improved his score he could be subject to the relevant provisions of the Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği). 13. On 27 March 2006 the applicant lodged a complaint with the Directorate of the Security Forces, contesting his poor appraisal score and requesting clarification of the circumstances of his appraisal. 14. On 10 May 2006 the applicant received a letter stating that his complaint had been examined on the basis of the documents relating to his appraisal and that his appraisal had been conducted in accordance with the law and the applicable procedure. 15. On 14 July 2006, the applicant instituted administrative proceedings before the Istanbul Administrative Court, requesting the court to stay and to set aside the appraisal decision of 3 March 2006. He argued that his superiors had only taken into account the allegations of bribery against him in connection with the narcotics operation carried out in 14 July 2005 and had failed to respect his right to the presumption of innocence given that the criminal proceedings concerning the same allegations were still pending. In that respect, he submitted that his appraisal had been biased. He further submitted that, owing to the fact that his appraisal had been poor, he had been transferred to a remote city and was therefore prevented from continuing his master’s studies at Marmara University in Istanbul. 16. During the course of the proceedings the applicant submitted to the Istanbul Administrative Court the judgment of 29 September 2006 acquitting him of the charges of bribery. 17. During the course of the proceedings the court requested from the Ministry of Interior the file regarding the applicant’s appraisal, as well as his appraisal records over the previous five years. The applicant’s previous appraisal in respect of the years 2003 and 2004 had been excellent, with a score of 95. No appraisals had been carried out in the years 2000 and 2002 owing to the fact that the applicant had taken unpaid leave. Lastly, for the year 2001, the applicant’s appraisal score had been mediocre, with a score of 74. 18. On 31 October 2007 the court dismissed the applicant’s request and held that his appraisal had been carried out in accordance with the law and had no appearance of arbitrariness. The relevant parts of the judgment read: “Appraisal exercises are carried out annually to assess a civil servant’s competence, skills, output and his or her professional conduct. On the one hand, an appraisal report necessarily contains observations that are based on the subjective impressions of the appraiser – which need not be substantiated by concrete evidence. In this last respect, however, if an appraisal report contains negative feedback in terms of a civil servant’s productivity, competence and work discipline, these points need to be substantiated with reasons ... On the other hand, all acts of the State are subject to judicial review ... As a safeguard against arbitrariness, appraisal reports need to contain reasons for their conclusions ... On the basis of the examination of the case file, it is understood that the applicant was implicated in a disciplinary investigation involving allegations of bribery. Following the disciplinary investigation he received two deferments of advancement to a higher rank of durations of 16 months and 24 months, respectively. Due to the fact that the applicant had received disciplinary sanctions, his appraisal report indicated that the applicant had demonstrated a tendency to put his own interests first [tavassuta düşkünlük]. Therefore, the court finds it established that the ... disciplinary misconduct attributed to the applicant was proved during the course of the disciplinary investigation and that the poor appraisal based on the perception of his tendency to put his own interests first is not incompatible with the law.” 19. The applicant appealed against the decision to the Supreme Administrative Court, reiterating the arguments he had raised before the Istanbul Administrative Court and further submitting that the Administrative Court had found a very similar appraisal report to be incompatible with the law in the case of a colleague who had also been subject to the same disciplinary proceedings concerning the narcotics operation of 14 July 2005. In the context of those other proceedings concerning the applicant’s colleague, the Kastamonu Administrative Court, acting as the court of first-instance, had held on 25 April 2008 that: “The appraisal system is the legal basis on which a civil servant receives a promotion, demotion or salary increase, or obtains a transfer to a different city or to a different function ... In consideration of the significance of the legal consequences of the appraisal and having regard to the legal nature of the appraisal report, the reasons set out in the appraisal report must clearly explain the conclusions reached and also support such conclusions with concrete background information and documents. ... In the circumstances of the present case, the court had regard to the plaintiff’s appraisal reports for the years preceding 2006 and noted that his appraisal reports concerning the previous five years had consistently been excellent. However, the ‘mediocre’ appraisal score given to the plaintiff for the year 2006 was not substantiated with reasons or documents and contained no explanation as to why the applicant had gone from excellent to mediocre. On the basis of the foregoing, the court sets aside the appraisal report for not being compatible with the law.” 20. On 27 April 2009 the Supreme Administrative Court rejected the applicant’s appeal as ill-founded and found the impugned decision to be in conformity with the law and the applicable procedure. One judge (out of five) expressed a dissenting opinion. She stated, in particular, the following: “The disciplinary sanction received by the applicant does not in itself merit a poor score in respect of all the areas assessed in the appraisal report. For this reason, I do not agree with the majority that the appraisal was in total conformity with the law.” 21. The applicant lodged an appeal, seeking the rectification of the decision of 31 October 2007. In its decision of 27 January 2010, served on the applicant on 17 May 2010, the Supreme Administrative Court rejected that appeal. 22. Section 2 of the Disciplinary Regulation of the Security Forces (Emniyet Örgütü Disiplin Tüzüğü), in so far as relevant, provided as follows: “Disciplinary measures shall comprise one of the following: ... D) Lengthy deferment of advancement: advancement to a higher grade may be deferred for a period of twelve, sixteen, twenty or twenty-four months.” 23. Section 8 of the Disciplinary Regulation of the Security Forces, in so far as relevant, set out the possible grounds for a police officer’s dismissal from the police force as follows: “The following acts, procedures, behaviour and conduct incur expulsion from the profession ... 6. 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 ...” 24. Section 7 of the Disciplinary Regulation of the Security Forces, in so far as relevant, defined the types of misconduct sanctioned by a lengthy deferment of advancement as follows: “B) Deferment for a period of 16 months 1 – Conduct that is incompatible with the reputation and trust inherent in the official function. ... D) Deferment for a period of 24 months ... 2 – Neglecting one’s duty by failing to take the necessary actions against a suspect ...” 25. Section 17 of the former Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği) provided, in so far as relevant, as follows: “Overall assessment of the Civil Servant’s Conduct: The appraiser shall take into consideration a) Appearance (professional attire); b) Intelligence and his or her ability to learn; c) Ability to persevere, the desire to excel, [and] the ability to be discreet; d) [A]ddictions such as gambling and alcohol consumption that are not compatible with civil service; e) Personality traits such as reliability, preoccupation with one’s own self-interest, honesty, tendency to gossip [or feel] jealousy ...” 26. Section 24 of the former Regulation on the Personnel Records of Civil Servants provided, in so far as relevant, as follows: “A civil servant who receives two poor appraisal scores in succession shall be assigned to a different appraisal unit and in the event that he [again] receives a poor score, he shall be dismissed from the profession ...”