Insufficient judicial control regarding a measure of dismissal of an official in a public body imposed after the failure of a military coup in Turkey. Violation of the ECHR
JUDGMENT
Pişkin v, Turkey 15.12.2020 (app. no. 33399/18)
SUMMARY
The case concerned Mr Pişkin’s dismissal on the grounds that he had links with a terrorist
organisation, in the wake of the declaration of a state of emergency in Turkey following the failed
military coup of 15 July 2016, as well as the subsequent judicial review of that measure.
Mr Pişkin complained that neither the procedure leading to his dismissal nor the subsequent judicial
proceedings had complied with the guarantees of a fair trial. He also complained that he had been
branded a “terrorist” and “traitor”.
The Court noted that Legislative Decree No. 667 had not only authorised the dismissal of civil
servants but also required public institutions such as Mr Pişkin’s employer to dismiss civil service
employees under a simplified procedure. The prior decision-making process for the termination of
the employment contract had not necessitated any form of adversarial proceedings, and no
procedural safeguards had been laid down in the Legislative Decree. It had therefore been sufficient
for the employer to consider the employee as belonging, affiliated or linked to one of the illegal
structures defined in the Legislative Decree, without any need to provide even cursory personalised
reasoning.
As regards the right to a fair trial, the Court considered that the crucial question was whether
Mr Pişkin’s inability to take cognisance of the reasons for his employer’s termination of his
employment contract had been adequately counterbalanced by effective judicial review of the
employer’s decision. The Court held in that connection that the domestic courts had not conducted
any thorough or in-depth examination of Mr Pişkin’s ground of appeal, that they had not based their
reasoning on the evidence presented by the applicant and that they had given no valid reasons for
dismissing his arguments. Those shortcomings had thus put Mr Pişkin at a clear disadvantage vis-àvis his opponent. Despite the fact that, theoretically, the national courts had had full jurisdiction to adjudicate the dispute between Mr Pişkin and the authorities, they had declined jurisdiction to
consider all the factual and legal issues relevant to the case before them, as required under Article
6 § 1 of the Convention. Finally, the Court considered that the failure to comply with the
requirements of a fair trial could not be justified by the Turkish derogation (Article 15 of the Convention, derogation in time of emergency).
As regards respect for the right to private life, the Court held that Mr Pişkin’s dismissal had had
serious negative consequences on his family “inner circle”, on his ability to forge and develop
relationships with others and on his reputation. In particular, Mr Pişkin had been unemployed since
the termination of his contract, and prospective employers did not dare offer him employment owing to the fact that his dismissal had been based on Legislative Decree No. 667. Consequently, the termination of Mr Pişkin’s employment contract had had major negative repercussions on his private
life and had attained the severity threshold for the applicability of Article 8.
In the Court’s view, even in cases where national security considerations had to be taken into
account, the principles of lawfulness and the rule of law applicable in a democratic society required
any measure affecting an individual’s fundamental rights to be subject to some form of adversarial
proceedings before a competent independent body, assessing the reasons for the impugned
interference and the relevant evidence.
In the present case the national courts had failed to determine the actual concrete reasons for the
termination of Mr Pişkin’s employment contract. The judicial review of the implementation of the
measure had therefore been inadequate, and Mr Pişkin had not benefited from the minimum level
of protection against arbitrariness required under Article 8 of the Convention. Furthermore, the
impugned measure could not be deemed to have complied with the strict measure necessitated by
the particular circumstances of the state of emergency.
PRO
Article 6
Article 8
PRINCIPAL FACTS
The applicant, Hamit Pişkin, is a Turkish national who was born in 1982 and lives in Bingöl (Turkey).
Mr Pişkin had been working since December 2010 as an expert at the Ankara Development Agency
(Ankara Kalkınma Ajansı), a public-law entity responsible for coordinating the regional activities of
various public and private bodies. His permanent employment contract had been governed by the
Labour Code (Law No. 4857), and his legal status had been subject to the rules of private law.
On 26 July 2020, shortly after the failed military coup of 15 July 2016, the governing board of the
Ankara Agency met in order to assess the status of their employees. On the same day it decided to
terminate the employment contracts of six persons, including Mr Pişkin, pursuant to Legislative
Decree No. 667, considering those persons as belonging, affiliated or linked to structures posing a
threat to national security.
On 14 August 2016 Mr Pişkin lodged an appeal with the Ankara Labour Court seeking the annulment
of the decision to terminate his employment contract. He submitted, among other things, that his
dismissal had lacked any valid reason, and that it was abusive, null and void. He further claimed
compensation for his dismissal.
On 25 October 2016 the court dismissed Mr Pişkin’s administrative appeal. He then appealed,
subsequently lodging an appeal on points of law, but his appeals were dismissed. He finally lodged
an individual appeal with the Constitutional Court, which declared his complaints inadmissible on
10 May 2018.
On 5 September 2018 the Ankara Public Prosecutor’s Office gave a discontinuance decision on
Mr Pişkin’s case, on the grounds of insufficient evidence in support of the suspicions required for
commencing criminal proceedings against him.
Relying on the civil and criminal limbs of Article 6 (right to a fair trial), Mr Pişkin submitted that
neither the dismissal procedure nor the subsequent judicial proceedings had complied with the
guarantees of a fair trial.
Mr Pişkin also complained that he had been dismissed on the grounds of links to a terrorist
organisation, and that he had been branded a “terrorist” and “traitor”. The Court decided to
examine that complaint under Article 8 (right to respect for private and family life).
The Section President had given leave to the following non-governmental organisations to intervene
in the written procedure: Amnesty International, the International Commission of Jurists, and the
Turkey Human Rights Litigation Support Project.
THE DECISION OF THE COURT…
Article 6 § 1 (right to a fair trial)
Applicability of the civil and criminal limbs of Article 6
The Court considered that the civil limb of Article 6 of the Convention applied to Mr Pişkin’s
dismissal procedure, which clearly concerned a civil right. Indeed, all employment disputes,
especially those relating to action to terminate employment in the private sector, concerned civil
rights within the meaning of Article 6 § 1 of the Convention. Moreover, even supposing that
Mr Pişkin were considered as having been an employee under contract discharging duties equivalent
or similar to those discharged by civil servants, the Court reiterated that according to its case-law
disputes between the State and its officials in principle fell within the ambit of Article 6, unless the
following two conditions were simultaneously fulfilled : firstly, the State in its national law had to
have expressly excluded access to a court for the post or category of staff in question; and secondly,
the exclusion had to be justified on objective grounds in the State’s interest. In the instant case the
first of those two conditions had not been fulfilled, because Turkish law permitted Development
Agency employees to lodge appeals with the labour courts against terminations of their employment
contracts. Mr Pişkin had had that option, and he had indeed availed himself of that remedy.
The Court considered that the criminal limb of Article 6 of the Convention was inapplicable to the
present case, since the dismissal procedure had not amounted to a criminal charge under the
“Engel” criteria.
Procedure for terminating the employment contract
The procedure used for terminating Mr Pişkin’s employment contract had stemmed directly from
the derogating measures adopted during the state of emergency. During that period the Council of
Ministers, meeting under the chairmanship of the President of the Turkish Republic, had adopted 37
legislative decrees (nos. 667 to 703). Among those texts, Legislative Decree No. 667 had not only
authorised the dismissal of civil servants but also required public institutions such as Mr Pişkin’s
employer to dismiss civil service employees under a simplified procedure. The prior decision-making
process concerning the termination of Mr Pişkin’s employment contract had not necessitated any
form of adversarial proceedings. Likewise, the Legislative Decree had not laid down any procedural
safeguards. It had been sufficient for the employer to consider the employee as belonging, affiliated or linked to one of the illegal structures defined in the Legislative Decree, without any need to provide even cursory personalised reasoning.
On that subject, the Court was prepared to accept that Legislative Decree No. 667 had been adopted
in order to facilitate the immediate dismissal under simplified procedure of civil servants and other
civil service employees who had clearly been involved in the failed military coup of 15 July 2016. As
the Venice Commission4 had rightly pointed out, “any action aimed at combating the conspiracy
would not be successful if some of the conspirators are still active within the judiciary, prosecution
service, police, army, etc.” Such a procedure might be deemed justified in the light of the very
particular circumstances of the state of emergency.
However, the Court attached importance to the fact, in particular, that the legislative decree in
question had placed no restrictions on the judicial review to be exercised by the domestic courts
after the termination of the employment contracts of the persons concerned, such as the applicant
in the instant case. Indeed, the latter had been able to contest the impugned termination decision
before the labour court, to appeal against that court’s decision before the Regional Court and to
lodge an appeal on points of law; and in fact he had also lodged an individual appeal with the
Constitutional Court.
Thus the Court considered that the crucial question arising in the present case was whether
Mr Pişkin’s inability to have cognisance of the reasons which had led his employer to terminate his
employment contract, on account of the alleged existence of links with a terrorist organisation, had
been adequately counterbalanced by effective judicial review.
The judicial review
The Court noted that since Mr Pişkin had not benefited from any procedural safeguards during the
procedure for the termination of his employment contract, his only recourse had been to apply to
the national courts for factual or other evidence capable of justifying his employer’s assessment.
That was the only channel through which the applicant could contest the verisimilitude, the truth
and the reliability of the evidence in question. Accordingly, it had been incumbent on the courts to
examine all these factual and legal questions relevant to the case before them in order to afford the
litigant concerned, namely Mr Pişkin, effective judicial review of the employer’s decision. In the
Court’s view, that was the central issue of the case.
The national courts had thus been called upon to adjudicate on the legal basis for the impugned
termination of contract and on the factors capable of justifying the employer’s assessment that
Mr Pişkin had links with an illegal structure. However, they had merely considered whether the
dismissal had been decided by the relevant body and whether the decision had had a basis in law.
Neither the legal regime of termination “with a valid reason” nor the question whether the
employer had been in possession of any fact possibly justifying such grounds of dismissal, that is to
say the alleged existence of links with an illegal structure, had ever really been discussed by the
domestic courts. More specifically, at no stage in the proceedings before the different trial benches
had the domestic courts considered the question whether the termination of the applicant’s
employment contract for presumed links with an illegal structure had been justified by his conduct
or any other relevant evidence or information. Furthermore, it did not transpire from the dismissal
decisions given by the trial courts that Mr Pişkin’s arguments had ever been carefully considered.
As for the Constitutional Court, it could have played a fundamental role at the national level in
protecting the right to a fair trial and remedying the breaches noted above. However, by giving a
inadmissibility decision, the latter had failed to conduct any analysis of the legal and
factual issues in question.
The judicial decisions given in the instant case did not demonstrate that the domestic courts had
conducted an in-depth, thorough examination of Mr Pişkin’s arguments, that they had based their
reasoning on the evidence presented by the latter and that they had validly reasoned their dismissal
of his challenges. The shortcomings noted above had put the applicant at a distinct disadvantage
vis-à-vis his opponent. Consequently, whereas the domestic courts had theoretically held full
jurisdiction to determine the dispute between Mr Pişkin and the administrative authorities, they had
deprived themselves of jurisdiction to examine all questions of fact and law relevant to the dispute
before them, as required by Article 6 § 1 of the Convention.
The derogation provided for in Article 15 of the Convention (derogation in time of emergency)
As regards the derogation provided for in Article 15, the Court noted that Legislative Decree No. 667
had placed no restrictions on the judicial review to be exercised by the domestic courts following the
termination of the employment contracts of those concerned, such as the applicant in the instant
case. The Court also pointed out that even in the framework of a state of emergency, the
fundamental principle of the rule of law had to prevail. It would not be consistent with the rule of
law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil
claims should be capable of being submitted to a judge for an effective judicial review – if a State
could, without restraint or control by the Convention enforcement bodies, remove from the
jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large
groups or categories of persons.
Accordingly, in view of the seriousness of the consequences for the Convention rights of those
persons, where an emergency legislative decree such as the one at issue in the present case did not
contain any clear or explicit wording excluding the possibility of judicial supervision of the measures
taken for its implementation, it had always to be understood as authorising the courts of the
respondent State to exercise sufficient scrutiny so that any arbitrariness could be avoided. In those
circumstances, the failure to observe the requirements of a fair trial could not be justified by the Turkish derogation.
There had therefore been a violation of Article 6 § 1 of the Convention.
Article 8 (right to respect for private and family life)
Applicability of Article 8
Firstly, the Court noted that the domestic courts had at no stage referred to the criminal
investigation, and, moreover, that the case file contained nothing to indicate that that investigation
or the proceedings before the domestic courts concerning Mr Pişkin’s dismissal had enabled the
national authorities to obtain information or factual evidence capable of substantiating the grounds
of dismissal. The Court concluded that there was absolutely no evidence to suggest that the
termination of the employment contract in question had been the foreseeable consequence of the
applicant’s own actions.
Secondly, the Court noted that Mr Pişkin’s dismissal had had serious negative consequences for his
“inner circle”, for his ability to forge and develop relationships with other people, and for his
reputation. The applicant had lost his job, that is, his means of subsistence. Moreover, he stated that
he had been unemployed since the termination of his contract, and that employers did not dare
offer him a job because the termination had been based on Legislative Decree No. 667.
Furthermore, the grounds of dismissal adopted, that is to say the existence of links with an illegal
structure, had undoubtedly had very serious consequences for the applicant’s professional and
social reputation.
Consequently, the termination of Mr Pişkin’s employment contract had had severe negative
repercussions on his private life and had exceeded the threshold of severity for Article 8 to be
applicable to the case.
Existence and justification of an interference
The Court considered that Mr Pişkin’s dismissal had been based on a provision of Emergency
Legislative Decree No. 667, which had required employers to terminate their employees’ contracts if
they considered that the latter had had links with an illegal structure. Consequently, the impugned
dismissal might be regarded as an obligation deriving from the said legislative decree, which had far
exceeded the legal framework governing Mr Pişkin’s employment contract. Accordingly, the
dismissal, based on his alleged links with an illegal structure, could be considered as an interference
in Mr Pişkin’s right to respect for his private life.
Having regard to the circumstances of the state of emergency and the fact that the domestic courts
had held full jurisdiction to review measures adopted pursuant to section 4 (1) (g) of Emergency
Legislative Decree No. 667, the Court was prepared to proceed on the assumption that the
impugned interference was prescribed by law. It then noted that that interference had pursued
several legitimate aims for the purposes of Article 8 § 2 of the Convention, that is to say the
protection of national security and the prevention of disorder and crime.
As regards the necessity of the interference in a democratic society, the Court’s scrutiny concerned
two points: (1) whether the decision-making process leading to the applicant’s dismissal had been
surrounded by safeguards against arbitrary action; and (2) whether the applicant had benefited from
procedural guarantees, and in particular whether he had had access to adequate judicial review, and
whether the authorities had acted diligently and promptly.
As regards the first point, the Court observed that the decision-making process preceding the
termination of the applicant’s employment contract had been very cursory. Following a meeting on
26 July 2016 aimed at assessing the situation of the employees working for the Ankara Agency, it
had been decided to terminate the employment contracts of six employees, including the applicant,
pursuant to section 4 (1) (g) of Emergency Legislative Decree No. 667, on account of their
membership of structures threatening national security or of the existence of links or connections
with such structures. The Court noted the vagueness and uncertainty of that affirmation, and
concluded that the decision taken by the Agency’s governing board had been substantiated by a
mere reference to the wording of section 4 (1) (g) of Emergency Legislative Decree No. 667, which
provided for dismissing employees considered as belonging, affiliated or linked to an illegal
structure.
The Court then observed that the applicant’s employer had failed to specify the nature of the
applicant’s activities potentially justifying the assessment that he had links with an illegal structure.
During the proceedings before the domestic courts, no concrete accusation had been explicitly
levelled concerning the alleged existence of links with such a structure. It transpired from the
Government’s observations that the applicant had been dismissed on account of his voluntary
involvement in activities linked to terrorist organisations. Similarly, it transpired from the domestic
courts’ decisions that the applicant’s employer’s assessment had concerned the alleged existence of
links between the applicant and the FETÖ/PDY organisation6
In short, the applicant had been dismissed on the grounds that he had links with an illegal secret structure which the national
authorities considered as having instigated the failed military coup of 15 July 2016.
The Court could accept, in keeping with its findings under Article 6, that the simplified procedure
established under Legislative Decree No. 667 enabling civil servants and other civil-service employees to be dismissed might have been considered as justified in the light of the very specific circumstances of the situation in the wake of the failed military coup of 15 July 2016, given that the
measures taken during the state of emergency had been subject to judicial review. Consequently, it
considered that no further assessment was required of the procedure in question in view of the
above-mentioned circumstances.
As regards the second point, that is, the thoroughness of the judicial review of the impugned
measure, the Court reiterates the principle that any individual subject to a measure for reasons of
national security must have safeguards against arbitrary action.
The Court was prepared to accept that membership of structures organised along military lines or
establishing a rigid, irreducible form of solidarity among their members, or else pursuing an ideology
contrary to the rules of democracy, a fundamental element of “the European public order”, could
raise an issue vis-à-vis national security and prevention of disorder where the members of such
bodies were called upon to discharge public duties.
In the Court’s view, the assessment by the public authorities or other bodies operating in the civil
service sphere of what posed a threat to national security would naturally be of significant weight.
Nevertheless, the domestic courts should be able to react in cases where invoking that concept had
no reasonable basis in the facts or pointed to an arbitrary interpretation.
In the present case, the Court was in no real position to adjudicate on the domestic authorities’
assessments which had formed the grounds for the applicant’s dismissal. Indeed, even though that
measure had been based on the alleged existence of links between the applicant and an illegal
structure, the Government had merely referred to the judicial decisions given by the domestic
courts. Those decisions had shed no light on the criteria that had been used to justify the employer’s
assessment and to determine the exact nature of the charges against Mr Pişkin. The domestic courts
had accepted that the employer’s assessment had been a valid reason for ordering the termination
of his employment contract, without thoroughly assessing the impugned measure and despite the
major repercussions of the latter on the applicant’s right to respect for his private life.
In the Court’s view, even where national security was at stake, the concepts of lawfulness and the
rule of law in a democratic society required that measures affecting fundamental human rights be
subject to some form of adversarial proceedings before an independent body competent to review
the reasons for the decision and relevant evidence. Were it impossible to contest effectively a
national security concern relied on by the authorities, the police or other State authorities would be
able to encroach arbitrarily on rights protected by the Convention.
Under those circumstances, the Court considered that in the instant case the domestic courts had
failed to determine the real reasons why the applicant’s employment contract had been terminated.
Consequently, the judicial review of the impugned measure in the present case had been
inadequate.
The Court therefore concluded that Mr Pişkin had not benefited from the minimum degree of
protection against arbitrary interference required by Article 8 of the Convention. In addition, for the
reasons set out in its review under Article 6, it considered that the impugned measure could not be
said to have been strictly required by the special circumstances of the state of emergency.
There had accordingly been a violation of Article 8 de la Convention.
Just satisfaction (Article 41)
The Court held, by a majority, that Turkey was to pay the applicant 4,000 euros (EUR) in respect of
non-pecuniary damage.
Separate opinions
Judges Bošnjak and Koskelo expressed concurring opinions. Judge Yüksel expressed a partly
dissenting opinion. These opinions are annexed to the judgment.
