Individual Application

The Facts

The applicants, who had been serving respectively as a police officer and a deputy district chief police, were dismissed from public service on the grounds of their alleged affiliation with or connection to terrorist organisations or structures, formations or groups found to be engaged in activities against the national security of the State. They applied to the Inquiry Commission on the State of Emergency Measures (“the Commission”), seeking the annulment of their dismissal. The Commission noted that the applicants’ inclusion in the archives of the Fetullahist Terrorist Organisation and/or the Parallel State Structure (“FETÖ/PDY”) as persons forming part of its covert structure within the police organisation, together with the other findings concerning them, demonstrated their connection to the FETÖ/PDY. It accordingly dismissed their applications.

The administrative courts dismissed the actions brought by the applicants for the annulment of the Commission’s decisions. The relevant court decisions became final following the appellate proceedings.

The Applicants’ Allegations

The applicants maintained that their dismissal from the profession through the inclusion of their names in the appended list to a state of emergency decree-law, on the grounds that they were considered to have affiliation with or connection to the FETÖ/PDY—which had been found to be engaged in activities against the national security of the State—had violated their right to respect for private life.

The Court’s Assessment

General Assessment

In the course of the investigations conducted into the membership of the FETÖ/PDY, statements were taken from an anonymous witness codenamed “Garson” who handed over two microSD cards and a mobile phone containing significant information relating to the investigations.

Following the submission of the digital materials by Garson to the chief public prosecutor’s office, the General Directorate of Security carried out technical examinations of those materials and issued several reports. After the initial data-examination reports had been drawn up, the advancement of decryption and similar technical work on the digital materials enabled the retrieval of numerous additional digital files containing information on the organisational structure and the decoding of different file paths. The resulting tables revealed multiple pieces of coding information concerning the relevant persons, on the basis of which data-analysis reports were subsequently prepared. It was also observed that Garson’s statements on the matter had been taken by various judicial authorities.

It must be acknowledged that the digital data submitted by Garson are of significance in determining whether an individual had affiliation with or connection to the FETÖ/PDY. Indeed, the atypical characteristics of the FETÖ/PDY—such as its clandestine nature, cell-based structure and organisation within every public institution—also demonstrate the importance of information or documents of this kind.

Nevertheless, the existence of affiliation with or connection to the FETÖ/PDY, and the consequent severance of the bond of loyalty to the democratic constitutional order, must be established by the administrative and judicial authorities on serious and objective grounds, through relevant and sufficient reasoning that strikes a fair balance between the interests of the applicant and those of the public. From this standpoint, the coding information contained in the data-examination reports may be regarded as giving rise to a suspicion on the part of the public authorities that the person concerned had such affiliation or connection. However, the information included in those reports must also be verified as consistent and accurate, given the suspicion regarding the existence of affiliation with or connection to the FETÖ/PDY.

Ultimately, given that the data-analysis reports contain coding information concerning the relevant persons drawn from different lists, they may enable an assessment as to whether the coding information in question is consistent and accurate. In other words, where data-analysis reports contain consistent and verifiable data, they may, in themselves, be regarded as sufficient evidence of the existence of affiliation or connection. Likewise, where the coding information included in data-examination reports is corroborated by other evidence, the suspicion that the persons concerned had such affiliation or connection may be considered substantiated. Where no such supporting or corroborative element exists, however, the administrative and judicial authorities must, bearing in mind the aforementioned significance of the data-analysis reports, conduct a sufficiently thorough investigation based on the suspicion arising from the coding information. They must also obtain the observations of the persons concerned in response to the matters suggesting their affiliation or connection and, in the light of all the relevant information, determine whether they had affiliation with or connection to the FETÖ/PDY.

A. As Regards the Applicant Mehmet Emin Okyay

In the proceedings concerning the dismissal from public service of the applicant, who had been serving as a police officer, the relevant judicial decisions relied, as grounds for dismissing his action, on the codes “EA” (persons within the FETÖ who stated, “The organisation is my organisation,” but had certain weaknesses) and “ETÜD: 2015/1” (the number of organisational meetings and activities attended under the guise of religious discussion gatherings), which appeared in the coding list obtained from Garson. It appears that the information concerning the applicant’s Bank Asya account, referred to in the decision of non-prosecution issued in his respect, was not deemed significant by the administrative or judicial authorities. That is to say, the judicial authorities concluded solely on the basis of the coding information in question that the applicant had affiliation with or connection to the FETÖ/PDY and had thereby breached his duty of loyalty to the democratic constitutional order.

In the dispute at hand, the applicant raised the principal complaint that, although he had been coded as “EA” in the data-examination report concerning him, no evidence had been adduced to substantiate the allegation that he embraced or identified himself with the organisation. Nor did the administrative or judicial authorities produce any other information demonstrating the applicant’s affiliation with or connection to the FETÖ/PDY. The applicant further maintained that the entry “ETÜD: 2015/1” in the report—which purportedly indicated that he had attended an organisational meeting once in 2015—was inaccurate and that he had never attended any meeting of the organisation.

In the present case, it appears that the applicant was dismissed from public service and that, at the conclusion of the ensuing judicial proceedings, his action was dismissed solely on the basis of the information contained in the data-examination report, without reliance on any other evidence. Although the codes appearing in the query-results document concerning the applicant were cited as grounds for the dismissal of his action, no investigation was carried out to corroborate those codes, due regard being had to the applicant’s allegations. Moreover, no data-analysis report capable of presenting coding entries from different lists was obtained and assessed in the course of the proceedings. Nor did the judicial authorities assess certain other coding information contained in the query-results section of the data-examination report.

Accordingly, the administrative and judicial authorities cannot be said to have established, by relevant and sufficient reasons, that the applicant had affiliation with or connection to the FETÖ/PDY—the perpetrator of the coup attempt—and had thereby severed his bond of loyalty to the constitutional order. The Court has therefore concluded that the impugned interference with the applicant’s right to respect for private life resulting from his dismissal from the profession was not strictly required by the exigencies of the situation prevailing during the state of emergency.

Consequently, the Court has found a violation of the right to respect for private life.

B. As Regards the Applicant Doğan Doğan

In the proceedings concerning the dismissal from public service of the applicant, who had been serving as a deputy district chief police, the relevant judicial decisions relied, as grounds for dismissing his action, on the fact that he had been coded as “A4” (a member of the FETÖ with a high level of submission, loyalty and commitment) in the coding list obtained from Garson, as well as on the witness statements concerning him.

In the present case, the judicial authorities assessed not only the coding information contained in the data-examination report but also the witness statements concerning the applicant when examining the grounds for his dismissal from public service. As a result of that assessment, the witness statements in question, in addition to the code assigned to the applicant, were relied on as grounds for dismissing his action. Those statements were given by two individuals who had served at the same workplace as the applicant. One stated that, prior to the coup attempt, the applicant had failed to take an action on a report drawn up in respect of a person who had praised the FETÖ/PDY. The other stated that, during the same period, the applicant had assigned individuals believed to have links to the FETÖ/PDY to posts within various branches. Ultimately, the judicial authorities assessed the suspicion of affiliation or connection arising from the coding information in the data-examination report together with the witness statements and concluded that the applicant had affiliation with or connection to the FETÖ/PDY. In this regard, the factual grounds relied on for the finding that the applicant’s bond of loyalty to the democratic constitutional order had been severed were substantiated to such an extent that they could be regarded as relevant and sufficient for the purposes of the applicable constitutional safeguards.

Having regard to the findings regarding the applicant, the conclusion reached by the judicial authorities—which accepted, on relevant and sufficient grounds, that the applicant had affiliation with or connection to the FETÖ/PDY, and had thereby severed his bond of loyalty—was compatible with the extent strictly required by the exigencies of the situation.

Given the necessity, under the exceptional circumstances prevailing at the material time, of implementing the measure of dismissal from public service through a swift and simplified procedure, it cannot be said that judicial review was ineffective or that the courts conducting the proceedings lacked independence or impartiality. The applicant was able to adduce evidence before the judicial authorities and to exercise, without hindrance, his rights to submit claims and present a defence. Accordingly, the requisite procedural safeguards were afforded in the proceedings.

Ultimately, the reasons deemed sufficient to demonstrate the applicant’s affiliation with or connection to the FETÖ/PDY were found to be relevant and convincing. In the particular circumstances of the case, the impugned measure was capable of averting the threat or danger that had led to the declaration of the state of emergency, was necessary for that purpose and proportionate to the legitimate aim pursued, and did not involve arbitrariness. The Court has therefore concluded that the measure did not go beyond the extent strictly required by the exigencies of the situation prevailing during the state of emergency.

Consequently, the Court has found no violation of the right to respect for private life.