EGMR: Deputy Prefect’s transfer from the capital to a provincial posting was unjustified

In today’s Chamber judgment in the case of Sodan v. Turkey (application no. 18650/05) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention. The case concerned the applicant’s transfer from his senior post within the governor’s office in the capital to a similar post in the provinces following a report on his conduct pointing out that his wife wore an Islamic veil and that he himself had an introverted personality.

The Court found in particular that the decision to transfer Mr Sodan to an equivalent post in a city which was less important in administrative terms had been based on reasons relating to his private life. Even supposing that that interference had been prescribed by law and pursued one of the legitimate aims set out in Article 8 of the Convention, the Court considered that it had not been necessary in a democratic society. The Court observed that the impugned proceedings had lasted in excess of six years and two months, which period of time did not meet the “reasonable time” requirement.

Principal facts

The applicant, Ramazan Sodan, is a Turkish national who was born in 1952 and lives in Ankara (Turkey). He was deputy governor of Ankara at the relevant time.

On 16 June 1998 an inspector with the governor’s office was instructed to carry out an investigation into Mr Sodan’s general conduct, in particular on the basis of two circulars, one concerning separatism and the other concerning fundamentalism among senior officials in the governor’s office. In his report the inspector conducting the investigation stated that Mr Sodan’s wife wore an Islamic veil and that Mr Sodan himself had an introverted personality which had a negative impact on the performance of his duties within the governor’s office, since senior members of the office had to be “model citizens with a modern appearance and outlook”. In conclusion, the inspector’s report proposed that Mr Sodan be moved to a different department or to a post in central administration not entailing any public role. Mr Sodan was not questioned at any stage of the investigation.

On 23 July 1998 Mr Sodan was transferred to the post of deputy governor of Gaziantep. On 31 July he lodged an application with the Supreme Administrative Court to have that decision set aside. After his application was rejected he lodged an appeal on points of law with the Supreme Administrative Court, without success.

Complaints, procedure and composition of the Court

Relying on Article 8 (right to respect for private and family life) and Article 9 (right to freedom of thought, conscience and religion), Mr Sodan alleged that his transfer had infringed his right to respect private life and his right to freedom of thought, conscience and religion. Under Article 6 § 1 (right to a fair trial within a reasonable time), he alleged a violation of his right to a fair trial on account of the length of the judicial proceedings. Relying on Article 7 (no punishment without law) he maintained that his transfer had been in breach of domestic law.

The application was lodged with the European Court of Human Rights on 6 May 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Julia Laffranque (Estonia), President,

Işıl Karakaş (Turkey),
Nebojša Vučinić (Montenegro),
Paul Lemmens (Belgium),
Valeriu Griţco (the Republic of Moldova),
Ksenija Turković (Croatia),
Jon Fridrik Kjølbro (Denmark),

and also Abel Campos, Deputy Section Registrar.

Decision of the Court

Article 8

The Court observed that it was important to establish the reasons for Mr Sodan’s transfer from his senior post in the governor’s office in the capital to a different post as deputy governor in the provinces, and to assess whether those reasons were compatible with the provisions of the Convention.

The Court noted that the internal investigation into Mr Sodan’s conduct had been ordered on the basis of a decision taken by the National Security Council (CNS). That decision related not to the capacity of senior officials for embodying authority or discharging their duties in a proactive manner, but solely to the place of religion in society and within the institutions, as well as the appropriate attire. In the present case the inspector’s report attached considerable importance to Mr Sodan’s religious convictions and to the fact that his wife wore an Islamic veil.

If, as the Government submitted, Mr Sodan’s transfer had been exclusively or primarily based on his competences, it would be difficult to grasp why the authorities had attached so much importance to his religious beliefs and to his wife’s attire.

The Court considered that there was an obvious causal link between Mr Sodan’s private life and convictions, on the one hand, and his transfer, on the other. It found that the applicant’s transfer constituted a kind of “disguised penalty”, that is to say a measure intended to penalise the official by in some way diminishing his professional situation on account of complaints lodged against him.

The Court reiterated that the Convention did not preclude the possibility of imposing a certain duty of discretion or restraint on officials with a view to guaranteeing civil service neutrality and ensuring respect for the principle of secularism. However, it noted, as the inspector’s report had in fact acknowledged, that Mr Sodan had been impartial in the performance of his duties and that no activities relating to religious fundamentalism had ever been noted.

The mere fact that Mr Sodan might have agreed with or belonged to a given religious movement was not sufficient grounds for taking action against him without clear evidence that he had shown bias in his work or received instructions from members of that movement, or else that the latter had posed a genuine threat to national security. Even supposing that that was the case, it would have been difficult to comprehend how that threat could have been averted by merely moving the person concerned to another city, rather than by dismissing him.

As regards the wearing by Mr Sodan’s wife of an Islamic veil, the Court has already accepted that regulations on the clothing worn by civil servants, and in particular the ban on wearing religious signs, could be justified on the basis of the requirement of civil service neutrality and secularism. However, the Court considered that in the decision to transfer Mr Sodan the aim of protecting civil service neutrality could not justify taking into consideration the fact that his wife wore such a veil. In the Court’s view that fact was a private matter for those concerned, and, moreover, no regulations had ever been adopted on the subject.

Consequently, the Court found that the decision to transfer Mr Sodan to an equivalent post in a city which was less important in administrative terms had been motivated by factors specific to his private life. Even supposing that that interference had been prescribed by law and pursued one of the legitimate aims set out in Article 8 of the Convention, the Court considered that it had not been necessary in a democratic society. There had therefore been a violation of Article 8 of the Convention.

Article 6 § 1

The Court observed that the impugned proceedings had lasted more than six years and two months. The Court took the view that taking so long to adjudicate on Mr Sodan’s application to have the decision set aside and subsequently on his appeal on points of law was inexplicable in the light either of the complexity of the case or of the applicant’s behaviour, and therefore did not meet the “reasonable time” requirement. There had therefore been a violation of Article 6 § 1.

Just satisfaction (Article 41)

The Court held that Turkey was to pay Mr Sodan € 9,000 in respect of non-pecuniary damage.

Press release ECHR 049 (2016) 02/02/2016

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