Press Release No: Individual Application 68/20

Press Release concerning the Judgment Finding a Violation of the Presumption of Innocence due to the Administrative Courts’ Failure to Consider the Acquittal Decisions Issued in the Criminal Proceedings

On 2 July 2020, the Plenary of the Constitutional Court found a violation of the presumption of innocence, safeguarded by Articles 36 and 38 of the Constitution, in the individual applications lodged by Hüseyin Sezer (no. 2016/13566) and Barış Baş (no. 2016/14253).

The Facts

The applicant Barış Baş, a teacher, was given a disciplinary penalty for allegedly having slapped in the face of his student, and a criminal investigation was initiated against him. At the end of the proceedings, the incumbent criminal court ordered the applicant’s acquittal. He then brought an action for revocation of the disciplinary penalty imposed on him; however, the regional administrative court found the impugned disciplinary penalty lawful.

The applicant Hüseyin Sezer, a court clerk, was tried before the incumbent criminal court for allegedly having delivered a copy of the case-file in respect of which a confidentiality order was issued to a lawyer. He was then acquitted of the imputed offence due to lack of evidence. However, at the end of the disciplinary investigation conducted against him for the same impugned act, the disciplinary penalty of dismissal from public office was imposed on him for having performed discreditable and disgraceful acts incompatible with his official capacity as a public officer. This disciplinary act was also found lawful by the administrative court.

The Applicants’ Allegations

Stating that despite being acquitted in the criminal proceedings, a disciplinary penalty was imposed on them and that the expressions used in the court decisions gave the impression that they were guilty, the applicants maintained that their presumption of innocence was violated.

The Court’s Assessment

The presumption of innocence means that a person charged with a criminal offence must be presumed innocent until proven guilty in a final decision of a court of law and is a requisite of the principle of the rule of law.

The protection afforded by the presumption of innocence, an element inherent in the right to a fair trial, has two aspects. The first aspect of such protection relates to the period to elapse until the conclusion of the criminal proceedings conducted against a person. It restrains premature explanations as to the suspect’s guilt and acts until a decision -whereby his guilt is established- is issued. The protection accordingly entails that all other administrative and judicial authorities abstain from implying, or making explanation as to, the person’s guilt until proven otherwise according to law.

The second aspect of the protection comes into play when the suspect has been acquitted of a criminal charge and protects him against any doubt on his innocence due to this criminal charge during the subsequent proceedings, as well as against any treatment by public authorities that would give the impression before the public that he is guilty.

In cases where the acts subject-matter of the disciplinary and criminal proceedings are the same, the administrative courts dealing with the disputes concerning disciplinary investigations are expected to respect the conclusion reached by the criminal court as to the establishment of the imputed offence and not to use expressions that would question the criminal court’s conclusion. Otherwise, the acquittal ordered by a criminal court makes no sense. In this respect, all of the State’s authorities including the administrative courts must abstain from acting in a way that would cause doubt as to the acquittal decisions.

In the present cases, the administrative court and the regional administrative court not only discussed the conclusion reached by the criminal court in its decision but also created the impression for those reading the decision that the applicants had committed the imputed acts, which rendered the acquittal decisions dysfunctional and casted doubt on the applicants’ innocence. These courts also gave rise to the issuance of contradictory decisions, in the criminal and administrative jurisdictions, as to whether the applicants had committed the imputed offences. It has been accordingly concluded that the second aspect of the presumption of innocence was violated.

Consequently, the Court has found a violation of the presumption of innocence, safeguarded by Articles 36 and 38 of the Constitution, in both applications.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.