The presumption of innocence and the disciplinary penalties. Can an innocent judgment and a disciplinary conviction coexist for the same incident?
JUDGMENT
Güç v. Turkey 23.01.2018 (no. 15374/11)
SUMMARY
Dismissal of a civil servant, head of a training center, following alleged harassment of a minor pupil. Liability for charges of criminal offense. Along with the criminal proceedings, disciplinary proceedings were also carried out by independent experts. In the end, the applicant was dismissed for the disciplinary offense of “shameful conduct”, which is a separate disciplinary offense for civil servants and does not involve criminal penalties. The disciplinary bodies have documented the term “shameful” with the real fact of “harassment of a minor”, a concept that differs from the criminal offense of “sexual abuse” or “sexual assault” accused, although the fact with the minor was exactly the same which was irrevocably acquitted in criminal courts.
According to the Strasbourg Court, the disciplinary decision had not described harassment as a sexual act – unlike the classification of the offense in the criminal proceedings – and therefore did not consider the applicant guilty of a criminal offense. The choice of words implies that the disciplinary authorities formed the view that the physical contact between the plaintiff and the minor constituted harassment but was not classified as sexual harassment within the meaning of criminal law. The ECtHR does not consider that disciplinary investigations have exceeded the limits of its administrative jurisdiction in a way that violates the applicant’s right to be held innocent in the criminal proceedings.
No breach of Article 6 § 2 (presumption of innocence).
PROVISION
Article 6 § 2
USE-COMMENT
Decision on the presumption of innocence with a problematic reasoning. While the applicant for the same facts with the same minor who happened at the same place and time was irrevocably acquitted by the criminal courts for the offense of “sexual harassment” of a minor, the disciplinary bodies dismissed him by characterizing the same incidents as “harassment of a minor”. The ECtHR distinguishes the two ratings and concludes that harassment does not mean that it violates the decision that renders the accused incocent of sexual harassment. However, this reasoning leaves heavy “shadows” to the absolutes of the presumption of innocence and indirectly undermines it, since the ECtHR accepts that the inspectors of the disciplinary proceedings have come to the conclusion that they have had the strong impression that the applicant had harassed the minor pupil. They essentially invalidate the acquittal of the same events with the “baptisms” of events on other terms. A setback in ECtHR case law on the presumption of innocence.
PRINCIPAL FACTS
The applicant, Yaşar Güç, is a Turkish national who was born in 1960 and lives in Giresun (Turkey).
The case concerned his complaint about his dismissal from the civil service after the alleged harassment of a nine-year-old school girl in 2006. He was working at the time as a caretaker at an education centre.
In 2008 he was acquitted of sexual offence charges related to the incident. In the meantime, he had been dismissed from his job for harassment, a decision which the Supreme Administrative Court ultimately upheld in 2009, without any mention of the acquittal.
Relying on Article 6 § 2 (presumption of innocence), Mr Güç complained about his dismissal and the reasoning employed by the administrative courts when reviewing that decision.
THE DECISION OF THE COURT
No violation of Article 6 § 2 (echrcaselaw.com editing).
