Individual Application

The Facts

The applicant, serving as a nurse at a district state hospital, filed a criminal complaint against her ex-boyfriend, stating that she had been sexually assaulted. In the medical report issued by the state hospital, it was noted that she had started to undergo medical treatment for the complaints of fear, lack of sleep and impairments in social functioning that arose after the impugned incident. Moreover, as regards the applicant, the incumbent family court issued a protection order under Law no. 6284 on the Protection of the Family and Prevention of Violence against Women.

In the meantime, a disciplinary investigation was initiated against her on the allegation that she failed to be present at her workplace despite the expiry of her ten-day medical leave. In the report drawn up at the end of the disciplinary investigation, it was concluded that the applicant could be given the penalty of dismissal from public office pursuant to the Law no. 657 on Civil Servants. It was however emphasised therein that in consideration of the applicant’s sufferings, if the dismissal from public office was not deemed appropriate, she could be appointed to another province and warned to notify, without delay, the medical leaves to the institution where she was working. The Public Health Agency of Turkey (“the administration”) held that the applicant be deemed to have resigned from her public post under Article 94 of Law no. 657.

The applicant brought an action before the administration court (“the court”), seeking the annulment of the impugned administrative act. However, it was dismissed by the court. Upon the appeal by the applicant, the Council of State upheld the first instance decision. The applicant’s request for rectification of the judgment was also dismissed. 

The Applicant’s Allegations

The applicant maintained that her right to respect for private life had been violated due to her being deemed to have resigned from public post.

The Court’s Assessment

By Article 94 of Law no. 657, the administration is granted a broad discretionary power in accepting the excuse submitted by the public officer for his/her failure to be present at the workplace. It should be however underlined that this discretionary power be necessarily exercised in the public interest and in accordance with the requirements of the given public post, regard being had to the fact that fundamental rights and freedoms are to be protected also in professional life. That is because the unlimited exercise of such discretionary power primarily leads to the upset of the fair balance to be struck between the interest in the continued performance of public service and the interests of public officers, in favour of the public that is admittedly in a more advantageous position vis-à-vis an individual.

In this sense, the excuses submitted for the failure to be present at the workplace must be subjected to a detailed scrutiny, and the relevant legislation must not be interpreted so strictly that would place an unbearable burden on the public officer, given that the dismissal from public office is a measure of last resort that should only be applied when all other options are deemed insufficient.    

In the present case, the applicant admitted to have failed to be present at the workplace for over 10 days. She, however, claimed that she had failed to do so on account of mental distress suffered by her as she had been subjected to threats for a long time, and subsequently to a sexual assault, by her ex-boyfriend. It appears that in support of her excuse, the applicant submitted certain medical reports and her statement taken during the relevant criminal investigation to the relevant authorities during both disciplinary investigation and prosecution.  

It is evident that the severe incidents that the applicant alleged to have experienced might be found established by the administration at the end of an inquiry and examination; and that the report issued at the end of the disciplinary investigation also included assessments that these allegations were found to reflect the truth. Moreover, in the medical board report issued by a university hospital with respect to the applicant, the impugned process undergone by her was assessed as a whole in the light of medical documents, and she was ultimately diagnosed with post-traumatic stress disorder and showing symptoms of depression.

Regard being had to the administrative decision with respect to the applicant and the proceedings as a whole, it has been observed that no evidence capable of refuting the findings in the said medical report was adduced; that the report issued at the end of the disciplinary investigation, which pointed to the applicability of alternative sanction, that is to appointment to another province, in view of the applicant’s sufferings and contained observations as to her psychological condition, was disregarded; and that the administration failed to discuss whether the public interest pursued could have been achieved through any other less severe interference. 

The Court has accordingly concluded that the impugned sanction was imposed as a result of a strict interpretation of the legislation, in the absence of any assessment whether the applicant’s psychological suffering -proven by medical and judicial documents- was in the nature of affecting her capacity to continue performing her post.

As a result, in the present case, no rigirous trial involving the safeguards inherent in the right to respect for private life was conducted, and it could not be demonstrated that the applicant’s dismissal from public office was compatible with the requirements of a democratic society and proportionate.

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