19 July 2018 Thursday

Ebru Bilgin [PA] (no. 2014/7998, 19 July 2018)

The Facts

The applicant holding office as a veterinarian in a public institution was given a written warning, by the institution director, to pay due diligence for maintaining peace within the institution. At a subsequent date, she was subject to disciplinary sanction, namely reprimand, for acting in breach of the principle of team-work, breaking peace and order at the institution and failing to behave respectfully toward her superiors. The action for annulment brought by the applicant against the disciplinary sanction was dismissed by the administrative court.

After the completion of the procedures for changing her place of duty, she was then assigned to serve at different units within the same institution. The applicant, who was asked to submit her defence arguments for being absent from work on account of her treatment, submitted her prescription to the administration. However, it was not found sufficient by the administration, and the institution director imposed disciplinary sanctions on her.

Upon the letter sent by the institution director to the relevant Ministry for assignment of the applicant in other units of the Ministry, she was accordingly appointed to the Provincial Directorate under the Governor’s Office. The action brought for annulment of this decision was dismissed by the administrative court. She appealed the administrative court’s decision; however, her appeal was also dismissed by the Regional Administrative Court.

In the meantime, she submitted petitions to the Institution Directorate, the Prime Ministry Communication Centre (BIMER) as well as to the Ministry and maintained that she had been forced to work under inappropriate conditions, insulted and exposed to psychological harassment by the institution director.

The report issued by the Governor’s Office upon the applicant’s request for an investigation against the institution director indicated that she was subject to psychological harassment, and accordingly the Governor’s Office granted permission for initiating an investigation against the director.

The incumbent chief public prosecutor’s office issued an indictment against the director and accused him of misconduct and threatening. However, he was acquitted by the relevant criminal court. The applicant’s action for damage was dismissed by the inferior court. Besides, her appeal against the dismissal decision was also rejected by the incumbent court.

The Applicant’s Allegations

The applicant maintained that she was unjustly appointed to another institution by the institution she had been holding office; that she was systematically and consistently exposed to psychological harassment and that she was deprived of an opportunity to an effective redress and protection. She accordingly alleged that her right to protect and develop her corporeal and spiritual existence was violated.

The Court’s Assessment

As regards acts or omissions which have reached an intolerable level of gravity and severity in respect of the impacts on the lives of employees and thereby pose a threat to their spiritual integrity and which are defined as psychological harassment, there are positive obligations incumbent upon the State under Article 17 of the Constitution.

In the present case, it appears that there is arbitrariness, on the part of the authorities, in frequently initiating an investigation against the applicant, constantly giving her a written warning, frequently asking her to submit her defence arguments as well as in questioning the documents submitted by her in spite of being aware of her health problem.

Although an administrative investigation was conducted in line with the applicant’s complaints, and a legal action was brought against the public official alleged to have harassed her psychologically, the administration failed to display due diligence in taking precautions in order to avoid reoccurrence of such behaviours.

In our legal system, it is prescribed that, in case of any damage sustained by individuals due to any omission by public officials in exercising their powers, an action for compensation would be brought against the administration which may then recourse it to the relevant official.

In the present case, there is a neglect of duty attributable to the administration due to its failure to take efficient precautions on time, and the damages sustained by the applicant must be redressed. In this respect, action for compensation is undoubtedly a remedy which would provide redress within the meaning of the right to protect and develop the corporeal and spiritual existence.

It has been observed that the applicant had recourse to effective judicial remedies; however, the dismissal decision rendered at the end of the action for compensation is devoid of sufficient grounds that would protect the safeguards inherent in the right to protect and develop the applicant’s corporeal and spiritual existence and redress the damages.

Consequently, the Court has concluded that the positive obligations incumbent upon the public authorities were not fulfilled due to the failures to take efficient precautions for avoiding similar acts in the form of psychological harassment, to redress the applicant’s damages as well as to explain the conclusions reached by the inferior courts with relevant and sufficient grounds.

For the reasons explained above, the Court found a violation of the applicant’s right to protect and develop her corporeal and spiritual existence safeguarded by Article 17 of the Constitution.