The refusal to appoint a teacher who was successful in a competition because of personal life issues and not because of professional incompetence, violated his right to privacy.

JUDGMENT

Yilmaz v. Turkey 04.06.2019 ( no. 36607/06)

see here 

SUMMARY

Unjustified interference with personal life. Refusal to appoint a teacher. The applicant, who came second to a teaching post abroad, was not appointed because of his personal life revealed by security investigation, in particular because he practiced  gender segregation and his wife’s dress code (veil).  His legal proceedings lasted about 5 years. The EU held,  that there has been a violation of Article 6 (a trial within a reasonable time) because the five-year length of the trial, did not appear to be reasonable and violation of Article 8 (right to privacy and family life)  because his not appoint was due to matters falling within the private life and not to the public interest since his professional competence was not judged, so such state interference was not necessary in a democratic society

PROVISIONS 

Article  6

Article 8

PRINCIPAL FACTS

The applicant, Abdullah Yılmaz, is a Turkish national who was born in 1965 and lives in Eskişehir
(Turkey).

At the time of the events, Mr Yılmaz, a teacher of religious culture, had passed a competitive
examination organised by the Ministry of Education for appointment to a teaching post abroad. He
came second in the examination.

In August 2000, after the examination process had been completed, a document marked “secret”
was issued, containing information about Mr Yılmaz and his wife. The document stated, among
other things, that Mr Yılmaz had spent several days in police custody in 1987 on suspicion of
damaging a statue of Atatürk; that he practised gender segregation (haremlik selamlık) in his home;
and that his wife followed the Islamic dress code in her daily life and wore a wig at the school where
she worked. The Ministry’s Evaluation Board subsequently drew up a list of 14 teachers who had
passed the competitive examination but who, following an investigation of their circumstances
under Article 15 of the Directive on Security and Archives, were deemed ineligible for the posts
concerned. Mr Yılmaz’s name appeared on the list.

In November 2000 Mr Yılmaz sent an information request to the relevant administrative authorities,
asking them for an explanation as to why he had yet to be offered a post abroad whereas the
candidate who had come third in the examination had already been appointed to one. The Ministry
replied that his circumstances had prevented his appointment, referring to the provisions of a
circular.

In January 2001 Mr Yılmaz applied for a stay of execution and for judicial review of the decision
refusing to appoint him, but was unsuccessful. Subsequently, the Supreme Administrative Court
rejected his application for a stay of execution (in January 2002) and his application for judicial
review (in December 2005 – judgment served on the applicant in February 2006).

THE DECISION OF THE COURT

Article 6 § 1 (right to a fair hearing within a reasonable time)

The Court noted that the proceedings had lasted approximately four years and 11 months in the
administrative courts, including three years and seven months before the Supreme Administrative
Court. This duration was excessive and incompatible with the “reasonable time” requirement.
Article 8 (right to respect for private and family life)

Firstly, the Court observed that the refusal to appoint Mr Yılmaz had resulted from the findings of a
security investigation that had disclosed information about his private life, such as his way of life and
his wife’s clothing. An arrest dating back many years, which had resulted in a decision not to
prosecute, had also been mentioned. The Court noted that apart from the information obtained
following the security investigation, the relevant administrative authorities had not put forward any
professional and/or administrative considerations that could have justified barring Mr Yılmaz from
being appointed to a post abroad. Nor had the administrative authorities explained how the
information resulting from the security investigation was capable in itself of preventing Mr Yılmaz
from taking up duties abroad. The Court thus considered that the reasons for not appointing Mr
Yılmaz had related solely to information concerning his private life. The underlying reasons for
measures affecting a person’s professional life could be linked to that person’s private life and thus
bring into play Article 8 of the Convention, which was applicable in this case.

Next, the Court observed that the refusal to appoint Mr Yılmaz amounted to interference with the
exercise of his right to respect for his private life and that the Ministry of Education had not provided any explanations of the public-interest grounds involved or the specific needs and features of
educational and teaching services that could have justified not appointing a teacher employed by
the Ministry to a post abroad. The Court also noted that the Evaluation Board had not expressed a
view on the applicant’s competence or ability to perform the duties in question but had solely taken
account of the findings of the security investigation. Those findings had attached paramount
importance to aspects of the applicant’s and his wife’s private life, in particular the fact that she
wore a veil. In that connection, the Court pointed out that it had previously found that the concern
to preserve the neutrality of public services did not justify taking into account the fact that a civil
servant’s wife wore a veil in the decision to transfer him, since that was a matter relating to the
private life of those concerned. Admittedly, the Court did not rule out that in some circumstances,
the specific requirements of public service might dictate that consideration should be given to the
findings of security investigations. Nevertheless, it failed to see in the present case how the fact that
the applicant’s wife wore a veil and the way he behaved at home – matters falling within the private
sphere – could run counter to public-interest imperatives or the needs of teaching and educational
services. It further noted that the applicant’s previous arrest had not given rise to a prosecution and
had also not constituted grounds for barring him from teaching in the public sector.

The Court therefore considered it established that the decision not to appoint Mr Yılmaz to a post abroad had
been motivated by factors relating to his private life. Even assuming that such interference had been
in accordance with the law and had pursued one of the legitimate aims referred to in Article 8, the
Court considered that in any event it had not been necessary in a democratic society. There had
therefore been a violation of Article 8 of the Convention.

Just satisfaction (Article 41)

The Court found that there was no cause to make an award to Mr Yılmaz by way of just satisfaction,
since he had not submitted any claims on that account.

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