Individual Application

The Facts

The applicants were dismissed from their respective public offices or professions based on the grounds of their alleged affiliation or connection with the Fetullahist Terrorist Organisation and/or the Parallel State Structure (FETÖ/PDY), which had been found to be engaged in activities against the national security of the State. They requested the annulment of the dismissal decisions, which were rejected. Thereupon, the applicants brought actions before the administrative courts, seeking the annulment of the impugned decisions. The administrative courts dismissed the actions for annulment. The appeals lodged against the administrative courts’ decisions were also dismissed with final effect.

The Applicants’ Allegations

The applicants maintained that their right to respect for private life had been violated for being dismissed from public office or their professions on the grounds of their alleged affiliation or connection with FETÖ/PDY, an organisation considered to have engaged in activities against the national security of the State. They further alleged that their presumption of innocence had been violated on the grounds that the administrative courts had dismissed their cases based on a criminal court judgment, and/or that they had been dismissed from public office without a final criminal conviction.

The Court’s Assessment

A. Alleged violation of the right to respect for private life

1. As regards the Applicant B.K.

In assessing various incidents, facts, information or documents concerning individuals to reach a conclusion regarding their affiliation with or connection to FETÖ/PDY, the administrative and judicial authorities may rely upon the statements of the parties concerned or witnesses. Given that FETÖ/PDY, by its structure, incorporates a large number of individuals into its system, that persons affiliated with FETÖ/PDY interact with one another even in small groups, and that on certain occasions, their conduct may reveal their connection to FETÖ/PDY to the outside world and be noticeable to their close social circles, the evidentiary weight of witness statements becomes even greater.

In addition, in order to conclude that the suspicion regarding the breach of allegiance to the constitutional order, arising from alleged affiliation with or connection to FETÖ/PDY, is grounded in objective facts and circumstances attributable to the individual concerned and of a serious, significant and concrete nature, it is necessary to conduct a qualitative assessment of the statements in question. Indeed, hearsay statements by witnesses cannot be presumed to be of a concrete and objective nature unless they relied on personal observation or knowledge. Where statements are based on personal observation or knowledge, due consideration must be given to their content. Furthermore, the statements in question must be consistent and must not contradict any other available evidence when assessed in conjunction with such evidence. Thus, it must be accepted that an incident or event that may be deemed coincidental or lacks the nature to reveal the existence of an affiliation or connection cannot be regarded as serious, significant and concrete objective evidence of a breach of the relevant person’s allegiance to the constitutional order.

However, in order for any interference with the right to respect for private life to be regarded as necessary to the extent required by the particular circumstances of the case within the meaning of Article 15 of the Constitution, it is imperative for the administrative and judicial authorities to establish on the basis of sufficient reasoning, serious and objective grounds demonstrating a breach of the allegiance to the democratic constitutional order arising from an individual’s alleged affiliation with or connection to FETÖ/PDY, in a manner that strikes a fair balance between the interests of the applicant and those of the public.  This necessity also stems from the fact that the notions of affiliation and connection can be clarified and substantiated by establishing an individual profile. Indeed, it follows from certain decisions of the Council of State that witness statements based solely on personal opinion or predictions, without concrete evidence, are insufficient to establish affiliation or connection with FETÖ/PDY.

Whether the measures in question were necessary to the extent required by the particular circumstances of the case under Article 15 of the Constitution has been examined on the basis of the grounds relied on by the judicial authorities. In this context, one of the statements relied on, in the present case, as grounds for dismissing the annulment request pointed to the applicant’s frequent visits to the residence of Y.B., identified as the abi, the person responsible for prosecutors within the organisation, while the other relates to his close relationship with t three individuals who had been suspended from office. It should first be noted that the witness stated that he did not know whether the close relationship in question stemmed from an organisational connection. Furthermore, there is no finding that Y.B. was the abi, the individual responsible for prosecutors within the FETÖ/PDY hierarchy; nor is there any statement indicating that meetings held at Y.B.’s residence involved activities, such as sohbet meetings, which could demonstrate an affiliation or connection. Consequently, based on the aforementioned legal principles and having regard to the content of these statements, it cannot be concluded that the events, facts and information contained therein are capable of revealing the existence of affiliation and connection, nor can they exclude the possibility of being coincidental.

Consequently, the administrative and judicial authorities cannot be said to have demonstrated, on the basis of relevant and sufficient grounds, that the applicant had been affiliated with or connected to FETÖ/PDY, the perpetrator of the coup attempt, or that his allegiance to the constitutional order had thereby been breached. Therefore, it has been concluded that the interference with the applicant’s right to respect for private life, in the form of his dismissal from the profession, was not necessary to the extent required by the circumstances of the state of emergency.

In the light of the foregoing, the Court has concluded that the interference with the right to respect for private life, safeguarded by Article 20 of the Constitution, did not comply with the criteria set out in Article 15 thereof, which governs the suspension and restriction of the exercise of fundamental rights and freedoms during a state of emergency, thus finding a violation of the applicant’s right to respect for private life.

2. As regards the Applicants Sümeyra Bakla and Sinan Ulu

As established in the decisions of the Council of State and the Court of Cassation, certain activities took place during the gatherings categorised as sohbet within the FETÖ/PDY structure namely, reading the books of the organisation’s leader Fetullah Gülen; engaging with his audio-visual materials; reading articles and watching videos from the organisation’s publications and the dissemination of internal instructions and guidance. According to the statements made in this regard and the findings of the judicial authorities, these meetings conducted under the guise of sohbet served distinct functional purposes including instilling a perception of the extraordinary personality of the organisation’s leader and a narrative of a sacred cause, fostering the sense of belonging to the group and ensuring unwavering allegiance, trust and devotion to the organisation. Furthermore, some statements indicated that financial support, known as himmet, had been collected from those attending these meetings for the benefit of the organisation. Consequently, in light of the findings of the judicial authorities, it has been concluded that taking part in the organisation of sohbet meetings or, depending on the specific circumstances of the case, mere attendance at such meetings may suffice to establish affiliation with and connection to FETÖ/PDY.

In this context, given the nature of such meetings, the activities associated with the meetings in question may, in fact, be regarded as evidence of the individuals’ affiliation with and connection to FETÖ/PDY. Consequently, the organisation of such meetings may, a fortiori, be considered a factor constituting evidence of such an offence.

Furthermore, in order for the suspicion regarding a public official, arising from alleged affiliation with or connection to FETÖ/PDY and relating to the breach of allegiance to the constitutional order, to be supported by objective events and facts of a serious, significant and concrete nature stemming from a reason attributable to the public official, a qualitative assessment of participation in the aforementioned meetings must also be carried out. In this regard, witness statements that are based merely on hearsay, rather than personal observation or knowledge, cannot, as a rule, be regarded as concrete and objective evidence of such participation or organisation. Where statements are based on personal observation or knowledge, their content must be duly taken into account; moreover, such statements must be consistent and must not contradict other available evidence. Indeed, an incident or fact that may be regarded as coincidental cannot, as a rule, constitute serious, significant and concrete objective evidence capable of demonstrating that a public official has breached allegiance to the constitutional order.

In addition, criminal courts rule on convictions where all material and immaterial elements of an offence are established and the accused person has committed the act beyond any reasonable doubt. As for administrative courts, the conclusion as to whether an administrative act is lawful is reached upon examination in terms of jurisdiction, form, grounds, subject matter and purpose. On the basis of the same facts, each court may reach a different assessment within the framework of the principles of adjudication and the standard of proof applicable to its respective jurisdiction. In this context, a decision not to prosecute or decision of acquittal regarding a particular offence does not preclude authorities from making a separate assessment as to whether the individual concerned has any affiliation with or connection to FETÖ/PDY. Additionally, it is natural for administrative judicial authorities, when examining affiliation with and connections to FETÖ/PDY, to take into account certain data or facts, information or documents established within the criminal proceedings, to assess them in their specific context and to interpret them differently from the conclusions reached in the criminal proceedings.

It should be noted, however, that the application of effective repentance provisions with regard to the persons concerned during criminal proceedings does not automatically exclude the possibility that these persons are affiliated with or connected to FETÖ/PDY. In other words, the institution of effective repentance set out in Turkish Criminal Code no. 5237 provides for a reduction in the sentence to be imposed or for no sentence to be imposed, when the offender shows remorse in respect of certain offences. As a general rule, the mere fact that criminal proceedings have been brought against individuals for offences such as membership of the FETÖ/PDY organisation, committing crimes on behalf of the organisation without being a member, or knowingly and willingly aiding the organisation, followed by remorse and the application of effective repentance provisions, does not lead to the conclusion that they are not affiliated with or connected to the organisation. Hence, the procedure for dismissal from public office, which is imposed due to affiliation with or connection to FETÖ/PDY, constitutes an extraordinary measure aimed at removing from public institutions and organisations the structures deemed to be engaged in activities against national security in association with terrorist organisations. This differs from sanctions imposed in response to the commission of criminal or disciplinary offences. In this context, it cannot be argued that the individual’s allegiance to the constitutional order, which had been severed due to being affiliated with or connected to FETÖ/PDY, has been directly restored merely by the individual’s expression of genuine remorse and confession. However, there is no doubt that this matter can be assessed by judicial authorities on the basis of relevant and sufficient grounds. Consequently, it can be concluded that the public authorities which, acting under the state of emergency, reached the verdict that the individuals in question had been affiliated with and connected to FETÖ/PDY and that their allegiance to the democratic constitutional order had been severed based on the statements of those who admitted their past actions, did not adopt an arbitrary approach. Furthermore, it can be accepted that the measure applied in this regard was proportionate to the circumstances.

In the present cases, it is observed that the acts attributed to the applicants, as revealed in the witness statements and set out in the reasoned decisions of the administrative courts, are substantiated by the findings in the decisions of the regional courts.

Accordingly, the statements by S.U. regarding the applicant Sümeyra Bakla’s participation in the sohbet meetings, together with the statements of N.K.K., N.A.Y., H.T. and E.A. indicating that she had organised these meetings and facilitated the participation of others, have substantiated this finding. Furthermore, the regional court of appeal also referred to the statements of two anonymous witnesses, who indicated that the applicant acted as an abla, a female coordinator within the organisation who was responsible for overseeing members, and collected financial contributions for the organisation under the name of himmet.

The witness statements concerning the applicant, Sinan Ulu, indicated that he had participated in organisational sohbet meetings, that he had also invited relevant individuals to these meetings, that he had acted as a group leader in this regard and that during these meetings he had attempted to provide financial support to the organisation under the pretext of scholarships and newspaper subscriptions.

Given that the events and facts reported in the statements in question, which are based on personal observation and knowledge regarding both applicants, are neither coincidental nor inconsistent, they may be regarded as serious, significant and concrete objective evidence indicating a breach of allegiance to the constitutional order.

Taking into account the findings presented regarding the applicants, it cannot be said that the judicial authorities’ conclusion ─reached on the basis of relevant and sufficient grounds─ that the applicants had been affiliated with and connected to FETÖ/PDY, the perpetrator of the coup attempt, and that their allegiance to the constitutional order had thereby been breached, is inconsistent with the requirements of the situation.

In the present cases, the applicants were dismissed from public office on the basis of relevant and sufficient grounds in pursuit of the interest of safeguarding the democratic constitutional order. Nevertheless, they were not subject to any additional restrictions preventing them from working in the private sector. It is considered that the dismissal decision was issued to avert the present danger without imposing any such restriction. Consequently, it cannot be said that this measure was disproportionate to the legitimate aim pursued.

It should also be emphasised that the European Court of Human Rights (ECHR) has recognised that, even in the absence of a radical transformation such as a regime change, certain measures including dismissal from public office and disqualification from holding public office may be taken against public officials, provided that the safeguards enshrined in the European Convention on Human Rights are respected. Indeed, in the judgments of Xhoxhaj v. Albania and Naidin v. Romania, the ECHR concluded that the measures imposing an indefinite ban on access to public service on the applicants had been compatible with, and proportionate to, the legitimate aims pursued.

Furthermore, it is evident that appropriate legal provisions were in place and functioned effectively to facilitate the resolution of disputes arising in the present cases. Indeed, it has been observed that all information and documents submitted during the proceedings and forming the basis of the disputed decisions were communicated to the applicants, and that they were afforded an effective opportunity to present their submissions in response to such information and documents. In this context, having regard to the necessity of applying dismissal from public office as a swift and simplified measure under extraordinary circumstances, it cannot be said that judicial review in the present cases was ineffective, nor that the courts conducting the proceedings lacked independence and impartiality. Consequently, it has been understood that the applicants presented their evidence before the judicial authorities, exercised their rights to raise allegations and submitted their defence without experiencing any obstruction, and that procedural safeguards were therefore provided in the proceedings.

It has been concluded that the reasoning provided, which has been deemed sufficient to demonstrate connection to or affiliation with FETÖ/PDY, the perpetrator of the coup attempt, was relevant and adequate. Furthermore, it has been assessed that the impugned measure taken in the specific circumstances of the present cases was suitable for eliminating the threat or danger that had led to the declaration of the state of emergency, was necessary for that purpose, was proportionate to the legitimate aim pursued and was not arbitrary. Consequently, it has been concluded that the measures in question remained within the limits required by the circumstances prevailing under the state of emergency.

In the light of the foregoing, the Court has ruled that the interference with the right to respect for private life, guaranteed under Article 20 of the Constitution, complied with the criteria set out in Article 15 thereof, which regulates the suspension and restriction of the exercise of fundamental rights and freedoms during a state of emergency. Consequently, the Court has found no violation of the applicants’ right to respect for private life.

B. Alleged Violation of the Presumption of Innocence

In the present cases, unlike sanctions imposed for the commission of criminal or disciplinary offences in ordinary situations, extraordinary measures, namely dismissal from public service, were applied with the aim of eliminating from public institutions and organisations the presence of structures found to have acted against national security in association with terrorist organisations. In the judicial review conducted by the administrative courts prior to the present applications, the lawfulness of the dismissal from public office was assessed in accordance with the principles of   administrative law, within the framework of the criterion of affiliation with or connection to FETÖ and/or PDY, which had been found to have acted against the state’s national security.

Furthermore, in its decision dismissing the appeal lodged by the applicant Sümeyra Bakla, the Council of State noted that the applicant had been sentenced to imprisonment for membership of an armed terrorist organisation, the pronouncement of which had been suspended, and that her conviction had become final in the absence of any appeal.  It must be emphasised that this information does not constitute a novel or separate ground, but merely reflects the situation in the criminal proceedings as reported in the decision of the Council of State. Moreover, the applicant did not raise any specific complaint regarding this matter. In addition, it should be noted that the applicant’s grievances concerning the presumption of innocence do not relate to the wording employed by the judicial authorities, but rather to her allegation that the administrative court dismissed her case on the basis of the decision to suspend the pronouncement of the judgment issued in the criminal proceedings.

In conclusion, the Court has concluded that under the specific circumstances of the present cases, he decisions do not contain any inference that the applicants committed the acts alleged against them in the criminal proceedings or that they are guilty. Furthermore, he wording and context of the statements contained in the decisions do not, in terms of criminal law or its technical elements, refer to the offence in question or indicate that it was committed.

Consequently, the Court has declared inadmissible the individual applications as being manifestly ill-founded insofar as this aspect is concerned.