ERENLER AND OTHERS v. TURKIYE - 53310/10 (Judgment : Article 11 - Freedom of assembly and association : Second Section Committee) [2023] ECHR 39 (17 January 2023)

JUDGMENT STRASBOURG 17 January 2023 This judgment is final but it may be subject to editorial revision. In the case of Erenler and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Egidijus Kūris , President , Pauliine Koskelo, Frédéric Krenc , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no. 53310/10 ) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 15 June 2010 by four Turkish nationals, relevant details are listed in the appended table ("the applicants"), who were represented by Mr M. R. Tiryaki, Mrs Z. Çolak, Mrs N. Sabbaz Basel and Mr M. N. Eldem, lawyers practising in Ankara; the decision to give notice of the complaint under Article 11 of the Convention to the Turkish Government ("the Government"), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application; the parties' observations; the decision to reject the Government's objection to the examination of the application by a Committee; Having deliberated in private on 13 December 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The application concerns the alleged violation of the applicants' right to freedom of association under Article 11 of the Convention on account of their transfers to public schools in different cities of Türkiye due to their trade union membership and activities. 2. The applicants were public school teachers in the city of Tunceli and members of the Education and Science Workers' Union ( Eğitim ve Bilim Emekçileri Sendikası ( Eğitim-Sen) ). . On 7 October 2005 the Governorship of Tunceli (the Governorship) proposed to the Ministry of Education (the Ministry) the applicants' transfer to other cities, noting that their employment in the city of Tunceli would adversely affect the security, order, public interest and service. The relevant part of the proposal reads as follows: "As it is known, our province has long been sensitive in terms of terrorism. Many marginal groups and structures acting as legal extensions of terrorist organisations have been carrying out misinformation and propaganda activities against our citizens in our province for a long time, and their efforts to recruit sympathisers are ongoing. Our governorship and all our institutions continue to fight against these and similar activities with all our means. It has been established that the aforementioned personnel directly or indirectly took part in the above-mentioned propaganda activities and participated in and supported the activities of non-governmental organisations that organise various activities under the name of different platforms at every opportunity, supporting separatist organisations." . In its proposal, the Governorship further listed the events that the applicants had participated in and the content of the slogans chanted by the participants in these events. Among others, the Governorship noted the following events: - On 23 April 2005, a press statement in front of the municipality underground bazaar concerning the recruitment policy in public services, - On 1 June 2005, a press statement in front of the local branch of AKP ( Adalet ve Kalkınma Partisi - the Justice and Development Party) concerning the dissolution of Eğitim-Sen. 5. On 8 November 2005 the Ministry decided to transfer the applicants to teachers' posts in different cities in accordance with the Governorship's proposal. . The applicants applied to the Elazığ Administrative Court for annulment of the Ministry's decisions. They submitted that their transfer had been decided due to their membership of Eğitim-Sen and without consideration of public interest and service needs. 7. On 16 January 2007 the Elazığ Administrative Court rejected the applicants' actions in separate decisions. The court concluded that their transfers were lawful under section 76 of the Civil Servants Law (Law no. 657) and section 9 of the Law for Provincial Administration (Law no. 5442). It also considered that the applicants' transfers were compatible with public interest and the needs of the public service. 8. In its reasoning, the Elazığ Administrative Court noted the Governorship's assessment (see paragraph 3 above) on the sensivity of the city of Tunceli in respect of terrorism and on the fact that the applicants' employment would adversly affect public security and order. The court also took note of the applicants' participation in certain events where participants chanted slogans, such as "tooth for tooth, blood for blood, we are with you Öcalan"; "Kurdistan will be the tomb of fascism"; "Resign the Governor"; "Guerrillas do not die, live the people's war"; "Live the revolutionary solidarity"; "Do not mess it up colonel, do not infuriate us"; "We will not be defeated by oppression". In its reasoning, the court did not refer to the applicants' participation in the events mentioned in paragraph 4 above. . The applicants appealed. Amongst others, they submitted that their transfers had been decided due to their membership of Eğitim-Sen , but not on grounds of public interest and service needs. 10. On 6 November 2009 the Supreme Administrative Court upheld the Elazığ Administrative Court's decisions, noting briefly that the reasoning in these decisions was in compliance with the law and procedure. 11. Relying on Article 11 of the Convention, the applicants complained of a violation of their right to freedom of association, claiming that they had been transferred to public schools in different cities of Türkiye because of their trade union membership and activities. THE COURT'S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 12. The Government argued that the applicants' complaints were incompatible ratione materiae with Article 11 of the Convention. In this regard, the Government submitted that the transfer decisions were in no way based on their trade union activities. The Government further noted that the applicants had not been deprived of their membership of the trade union in question and had therefore retained the possibility of pursuing trade union activities even after their transfers. 13. The Court considers that this objection is closely linked to the question of whether there was an interference with the applicants' right to freedom of association. Accordingly, the Court holds that the Government's objection that the applicants' complaints are incompatible ratione materiae with the provisions of Convention should be joined to the merits of their complaints under this head. 14. The Government submitted that, alternatively, the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicants had not requested rectification of the final decision of the Supreme Administrative Court. 15. The Court notes that rectification is an extraordinary remedy which applicants are not required to exhaust under Article 35 § 1 of the Convention (see, among others, Karaduman v. Turkey , no. 16278/90 , Commission decision of 3 May 1993, Decisions and Reports (DR) 74, p. 106, and Sarıdaş v. Turkey , no. 6341/10 , § 31, 7 July 2015). Therefore, the Government's objection regarding non-exhaustion of domestic remedies must be rejected. 16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 17. The Court reiterates that in the case of Metin Turan v. Turkey (no. 20868/02 , 14 November 2006), which raised a similar issue, it observed that the compulsory transfer of a civil servant to another city on account of his trade union membership and activities did not fall within the scope of the proper running and management of the public service and constituted an unjustified interference with the civil servant's right to engage in trade union activities in breach of Article 11 (see Metin Turan , cited above, §§ 30-31). . In the present case, it is clear from the content of the Governorship's proposal of 7 October 2005, on which the Ministry relied in its decision which was subsequently confirmed by the domestic courts, that the applicants' actions within the context of the Eğitim-Sen trade union's activities, among others, were taken into consideration in the decision for their transfers. The Court further observes that the Governorship particularly noted the applicants' participation in the activities of "non-governmental organisations" when proposing their transfer (see paragraph 3 above). Accordingly, the Court is of the opinion that the applicants have sufficiently and convincingly substantiated their allegations that the impugned decision was a consequence of their trade-union-related activities, and as such constituted an interference with their right to freedom of association as enshrined in Article 11 of the Convention. Even though, as the Government submitted and the applicants do not contest, the applicants were able to participate in trade union activities after their transfer, the Court considers that the applicants' trade union activities were taken into account in the decision for their transfer to different public schools. In the light of the foregoing, the Court dismisses the Government's objection as regards the compatibility ratione materiae of the application with the provisions of the Convention. 19. The Court further observes that the parties agree that this interference was provided for by law, more specifically by section 76 of Law no. 657 on Civil Servants, and that it pursued legitimate aims under Article 11 § 2 of the Convention, namely the prevention of disorder and the protection of the rights of others. 20. As to the necessity of such interference in a democratic society, the Court must look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it were "relevant and sufficient". In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the appropriate provision of the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among others, Demir and Baykara v. Turkey [GC], no. 34503/97 , § 119, ECHR 2008, and Silgir v. Turkey , no. 60389/10 , § 20, 3 May 2022). 21. In the present case, the Court notes that the applicants explicitly argued in their submissions before the national courts that their transfers had been decided on account of their trade union activities and not for public interest and service needs (see paragraphs 6 and 9 above). The Court observes, however, that in its decisions, the Elazığ Administrative Court did not address the applicants' argument but found that their transfers were lawful and in compliance with public interest and service needs because of the content of several slogans chanted during certain events. The Elazığ Administrative Court did not carry out an assessment as regards the nature of these events, notably whether they had been peaceful or held within the context of a trade union activity. In this respect, the Court finds it noteworthy that, despite the applicants' arguments in this regard, the domestic court did not take into account the fact that their participation in the demonstrations of 23 April and 1 June 2005 had been relied on as grounds for their transfers. However, these activities should be considered as trade-union-related activities (see paragraph 18 above). Moreover, neither the Governorship nor the Elazığ Administrative Court found it established that the applicants were chanting any of those slogans, nor that they were in any way acting in approval of their content. Finally, the Court notes that the Supreme Administrative Court did not provide a detailed reasoning in its decisions on the applicants' appeal, but merely upheld the Elazığ Administrative Court's decisions endorsing its reasoning. 22. In the light of the foregoing, the Court concludes that, in the circumstances of the present case, when deciding to transfer the applicants and dismissing their objections the national authorities did not adequately balance the applicants' right to freedom of association with the legitimate aims pursued and in accordance with the criteria laid down in its case-law ( mutatis mutandis , Ergündoğan v. Turkey , no. 48979/10 , § 34, 17 April 2018, and Silgir , cited above, § 32). It therefore considers that the national authorities have failed to demonstrate that the measure complained of was a result of a "pressing social need", and as such "necessary in a democratic society". 23. There has therefore been a violation of Article 11 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. The applicants claimed 5,000 euros (EUR) each in respect of non-pecuniary damage and 22,000 Turkish liras (TRL) in total in respect of lawyers' fees. In support of their claims, they submitted the Ankara Bar Association's recommended fee scales. They did not, however, submit any other invoice or documents in support of their claim. 25. The Government contested the applicants' claims as being unsubstantiated and excessive. 26. Ruling on an equitable basis (see Metin Turan , cited above, § 43), the Court awards each of the applicants EUR 2,500, plus any tax that may be chargeable, for non-pecuniary damage. 27. The applicants' claims for costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and their failure to provide the Court with any documents in support of their claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join to the merits the Government's objection that the application was incompatible ratione materiae with the provisions of the Convention and dismisses it; Declares the application admissible; Holds that there has been a violation of Article 11 of the Convention; Holds (a) that the respondent State is to pay each applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 17 January 2023, pursuant to Rule §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Egidijus Kūris Deputy Registrar President APPENDIX List of applicants: Application no. 53310/10 No. Applicant's Name Year of birth/registration Nationality Place of residence 1. Hüseyin ERENLER Turkish Tunceli 2. Vedat Ali ÇELİK Turkish Tunceli 3. Hasan Hayri KILIÇ Turkish Tunceli 4. Selma Polat KILIÇ Turkish Tunceli BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII