THE FACTS

 [7-30] The applicant, serving as a lieutenant colonel at the Turkish Naval Forces Command at the relevant time, was questioned as a suspect within the scope of an investigation conducted by the incumbent chief public prosecutor’s office into the alleged bid rigging committed by a criminal organisation. On 5 August 2013, the applicant was indicted before the relevant assize court for having aided a criminal organisation knowingly and willingly without being involved in its hierarchical structure, and accordingly, a criminal case was filed against him. The criminal proceeding conducted against him is still pending.

 Thereupon, the Turkish Naval Forces Command also initiated an administrative investigation against him. In the report issued at the end of this investigation, it was indicated that the applicant had had a very close relation with one of the members of this criminal organisation so as to gain several profits. At the end of the administrative investigation, the applicant was dismissed from his office on 13 March 2014.

 On 6 May 2014, he filed an action for annulment of his dismissal before the Supreme Military Administrative Court which unanimously dismissed the action, finding the applicant’s dismissal by the defendant administration lawful. The decision was served on the applicant on 16 March 2015. He did not file a request for rectification of this decision. On 7 April 2015, he lodged an individual application.

 V. EXAMINATION AND GROUNDS

31. The Constitutional Court, at its session of 11 June 2018, examined the application and decided as follows:

A. The Applicant’s Allegations

32. The applicant firstly reminded that the criminal proceeding against him was still pending and complained that in spite of being charged with no concrete act with respect to the offences that had been, as specified in the bill of indictment, committed by a criminal organisation, he was subjected to a punitive action by the administration acknowledging that the imputed acts had been committed, without even taking his defence submissions. He maintained that the presumption of innocence had been violated on the ground that in its decision concerning the applicant’s request for annulment of his dismissal from the Turkish Armed Forces (“the TAF”), the incumbent court found the acts and charges against him, which were imputed subjectively by the administration to him, established and made assessments as if the allegations had been proven to be true.

B. The Court’s Assessment

33. Article 36 § 1 of the Constitution reads as follows:

 “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.”

34. Article 38 § 4 of the Constitution reads as follows:

 “No one shall be considered guilty until proven guilty in a court of law.”

1. Admissibility

35. Pursuant to Article 148 § 3 of the Constitution and Article 45 § 1 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, which is dated 30 October 2011, the Constitutional Court may examine an individual application on its merits only when the right alleged to be violated by a public authority is safeguarded by the Constitution as well as it falls into the scope of the Convention and its additional protocols to which Turkey is a party. In other words, it is not possible for an application involving an alleged violation of a right which is outside the common protection realm of the Constitution and Convention to be declared admissible (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 18).

36. The right to a fair trial is safeguarded in Article 36 § 1 of the Constitution. In the legislative intention of Article 14 of Law no. 4709 and dated 3 October 2001, whereby the notion of “the right to a fair trial” was added to Article 36 § 1 of the Constitution, it is indicated that “the right to a fair trial, which is also safeguarded by the international conventions to which the Republic of Turkey is a party, has been incorporated into the provision”. It is thereby understood that the purpose of adding this notion to Article 36 of the Constitution is to safeguard the right to a fair trial which is enshrined in the European Convention on Human Rights (“the Convention”) (see Yaşar Çoban [Plenary], no. 2014/6673, 25 July 2017, § 54). In this regard, in determining the scope and context of the right to a fair trial safeguarded by the Constitution, Article 6 of the Convention titled “Right to a fair trial” must be taken into consideration (see Onurhan Solmaz, § 22).

37. Article 6 § 2 of the Convention provides for that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. In this sense, the presumption of innocence is an element inherent in the right to a fair trial safeguarded by Article 36 of the Constitution. It is also enshrined in Article 38 § 4 of the Constitution where it is set forth that no one shall be considered guilty until proven guilty in a court of law.

38. The protection afforded by the presumption of innocence, an element inherent in the right to a fair trial, has two aspects, as also noted in the judgments rendered by the European Court of Human Rights (“the ECHR”).

39. The first aspect of such protection relates to the period to elapse until the conclusion of the criminal proceedings conducted against a person, that is to say, the period during which the person is charged with a criminal offence (under a criminal charge). It restrains premature explanations as to the suspect’s guilt and acts until a decision is given. The scope of this aspect of the protection is not limited merely to the court conducting the criminal trial. The protection also entails that all other administrative and judicial authorities abstain from implying, or making explanation as to, the suspect’s guilt until proven otherwise according to law. Therefore, the presumption of innocence may be violated not only within the scope of the criminal proceedings but also during the civil process and proceedings (such as administrative, civil and disciplinary) conducted simultaneously with the criminal proceedings.

40. The second aspect of the protection comes into play when the suspect has been acquitted of a criminal charge and protects him against any doubt on his innocence due to this criminal charge during the subsequent proceedings, as well as against any treatment by public authorities that would give the impression before the public that he is guilty.

41. Upon the determination of the scope of the protections afforded by the presumption of innocence, it must be then ascertained whether these protections are applicable to a given case, which is important for deciding on the applicability of Article 36 of the Constitution to the given case and thereby the admissibility of the application.

42. In the present case, the criminal and disciplinary proceedings against the applicant were conducted simultaneously; however, the administrative action filed by him for the revocation of the disciplinary sanction was concluded pending the outcome of the criminal proceedings. The applicant’s complaint that the presumption of innocence was violated in the administrative action filed for the annulment of his dismissal from the TAF concerns the manner how the incumbent court handled the case as well as the expressions used in the reasoned decision. Therefore, the first aspect of the protection afforded by the presumption of innocence is in play in the present case where the expressions used by the administration imposing the disciplinary sanction on the applicant pending the criminal proceedings and by the judicial body reviewing the lawfulness of this sanction were complained of. It has been accordingly concluded that the protection afforded by the presumption of innocence, that is to say, Article 36 of the Constitution was applicable to the present case. In this sense, it appears that the applicant’s allegations fell within the joint protection realm of the Constitution and the Convention; and that the application was compatible ratione materiae with the provisions of the Constitution and the Convention.

43. The Court accordingly declared the alleged violation of the presumption of innocence admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2. Merits

a. General Principles

44. The presumption of innocence, which is a requisite of the principle of the rule of law, entails that a person who is under a criminal charge be presumed innocent until proven guilty through a final decision issued at the end of a fair trial (see the Court’s judgment no. E.2013/133, K.2013/169, 26 December 2013). This presumption guarantees that a person cannot be presumed guilty without a finalised judicial decision which has found established his having committed of the imputed offence. Besides, no one can be declared guilty of an offence and treated as a criminal by judicial and public authorities until he is found guilty by a court (see Kürşat Eyol, no. 2012/665, 13 June 2013, § 26).

45. As is known, criminal-procedure law and disciplinary law are the disciplines governed by different rules and principles. Disciplinary law is a field of law which aims at maintaining internal order of the institutions and which, to that end, regulates the sanctions to be imposed due to the acts performed by public officers in breach of the legislation, working procedure and requirements of the service, as well as the principles and procedures as to the application of these sanctions. In certain cases, the act of the public officer may fall into the scope of criminal law and involve liability also in terms of disciplinary law (in the same vein, see Özcan Pektaş, no. 2013/6879, 2 December 2015, § 25; and Kürşat Eyol, § 30). In this respect, it should be noted that in such a case, the presumption of innocence safeguarded by the Constitution does not preclude the conduct of both criminal and disciplinary proceedings against the relevant person on account of his act; nor does it pose an obstacle to the simultaneous conduct of these two proceedings.

46. On the other hand, the decision rendered at the end of the criminal proceedings by the criminal court, other than the one acquitting the relevant person of the imputed offence, is not directly binding for the disciplinary authorities. However, even if the person has been released from criminal liability, there is no obstacle to establishing any other kind of liability in respect of him on the basis of a more lenient burden of proof (in the same vein, see Özcan Pektaş, § 25; and Kürşat Eyol, § 30).

47. In the disciplinary investigations and proceedings conducted simultaneously with the criminal proceedings, in other words, conducted during the period when the relevant person is under a criminal charge and no decision has not been rendered yet in respect of him by the criminal tribunals, what is important in terms of the presumption of innocence is to ensure that the public authorities abstain from imputing criminal liability to the person concerned due to the reasons specified, or language used, in the actions or decisions taken by them as well as from acting in a way that would cause doubt as to the innocence of the person who has not found guilty yet by the criminal courts.

48. However, it is possible for the other public (administrative/judicial) authorities to separately assess the material facts, which have been subject-matter of the criminal proceedings, within the framework of the principles of disciplinary law and to take an action/decision in line with the conclusion reached at the end of this assessment. In this regard, the reliance on any evidence obtained during the criminal proceedings or referral to the criminal proceedings in the course of the disciplinary actions and proceedings does not per se constitute a breach of the guarantees afforded by the presumption of innocence. However, in cases where the judicial and administrative authorities declare the person as guilty, exceeding the limits of their competence, or make certain inferences in this respect may lead to the violation of the presumption of innocence. In assessing whether the guarantees inherent in the presumption of innocence have been fulfilled, the reasoning of the decision in question must be considered as a whole.

b. Application of Principles to the Present Case

49. In the present case, it has been observed that the criminal and disciplinary processes against the applicant were conducted simultaneously; however, the administrative action filed against the disciplinary sanction imposed on him was concluded pending the outcome of the criminal proceedings; that his criminal case is still pending, in other words, the applicant’s guilt has not been found established yet by a court decision. In this regard, it must be ascertained whether the grounds specified, or the language used, by the public authorities in the decisions rendered during the disciplinary investigation and prosecution have casted doubt on the innocence of the applicant, who has not found guilty yet by a criminal court.

50. In the present case, a piece of evidence (audio files obtained from tape records) obtained during the criminal investigation was relied on both in the report of the Administrative Inquiry Commission, which was issued in the course of the applicant’s dismissal from the TAF, and in the reasoned decision issued by the court which conducted the judicial review of the administrative act. It should be primarily reminded that pursuant to the above-cited general principles, this situation does not per se lead to the violation of the presumption of innocence.

51. It has been observed that the public authorities that examined the disciplinary process as well as the data available on the tape records, which were obtained during the criminal investigation, in the course of the administrative proceedings reached the conclusion on the basis of a more lenient burden of proof that the applicant’s acts and conducts were, in moral terms, of the nature that would impair the TAF’s dignity and would not be compatible with the requirements of the military service.

52. It appears that the decisions -where the above-mentioned conclusion was reached- in essence involve findings and assessments as to the applicant’s relation with a person, whom he got acquainted with due to his profession and who engaged in professional relationship with the applicant’s institution and was responsible for supervising his activities, based on mutual interest, as well as to the immoral nature/content of these interests. It should be underlined that the expression “his acts that have been found established”, which is included in the court’s decision, is also used in this context. The decisions in question do not apparently involve any comment or consideration as to the question whether the acts imputed to the applicant, which were dealt with in terms of merely disciplinary law, would be classified within the scope of criminal law as the offence of “membership of a criminal organisation/aiding knowingly and willingly to a criminal organisation”. In other words, it has been observed that in these decisions, there are no inference as to the applicant’s having committed of the imputed acts and his guilt in the criminal proceedings; and that the expressions used in the impugned decisions, due to the language used or their contexts, did not point to the imputed offence or its commission within the meaning of criminal law.

53. In the light of these findings, it has been concluded that the public authorities did not exceed the limits of the powers conferred upon them within the scope of the disciplinary investigation and proceedings to the extent that would infringe the right to be presumed innocent during the criminal proceeding which was simultaneously conducted against the applicant.

54. It has been accordingly observed that the language used and the reasoning relied on both in the disciplinary and the administrative proceedings did not constitute a breach of the presumption of innocence.

55. For these reasons, the Court found no violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution.

 VI. JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 11 June 2018 that

 A. The alleged violation of the presumption of innocence be DECLARED ADMISSIBLE;

 B. The presumption of innocence safeguarded by Articles 36 and 38 of the Constitution was NOT VIOLATED;

 C. The court expenses be COVERED by the applicant;

 D. A copy of the judgment be SENT to the Ministry of Justice.