PRESS RELEASE

18/11/2020

Press Release No: Individual Application 71/20

Press Release concerning the Judgment Finding a Violation of the Right to Respect for Private Life due to Termination of the Employment Contract for Breach of Confidence

The Facts

The employment contract of the applicant, an employee serving at the Central Union of the Turkish Agricultural Credit Cooperatives, was terminated -without notice and compensation- by the Board of Directors following the coup attempt of 15 July by virtue of the Decree-law no. 667. The applicant brought an action for her reinstatement in the relevant post before the incumbent labour court which subsequently dismissed it. Her challenge against the dismissal decision was also rejected by the regional administrative court. She then appealed against the decision; however, it was ultimately upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that her right to respect for private life had been violated due to the termination of her employment contract by the employer, based on breach of confidence.      

The Court’s Assessment

The application was examined under the right to respect for private life as the impugned interference with the professional life had a severe effect on the applicant’s private life, which attained a certain level of gravity. 

The reason for the termination of the applicant’s employment contract in the present case is the suspicion on the part of the applicant that she had a link or relation with the Fetullahist Terrorist Organisation/Parallel State Structure (“the FETÖ/PDY”), which was found established to have engaged in activities against the State’s national security, as well as the breach of confidence arising from this suspicion. It appears that the suspicion against the applicant was based on the bank account opened by her in Asya Katılım Bankası A.Ş. (Bank Asya) in 2009. It was found established by the judicial decisions that Bank Asya had obtained income from the amounts deposited by the organisation members upon the call by the leader and heads of the FETÖ/PDY; that it had thereby provided financial resources for the organisational activities and had operated as the financial centre of the FETÖ/PDY.

Given the documents included in the case-file before the trial court and demonstrating the transactions performed by the applicant through her account in Bank Asya since 2010, it has been observed that the reasons underlying the suspicion to the effect that she was in relation or connection with the FETÖ/PDY were not capable of proving the breach of confidence between the employee and the employer. It has been observed that the applicant’s transactions via her account in Bank Asya prior to the instruction to deposit money into Bank Asya accounts, which had been given to the organisation members by the FETÖ/PDY’s leader, were similar to those performed by her following the instruction in question.

Besides, it has been revealed that the transactions following the instruction were not always performed for increasing the balance at her bank account but there were also several transactions which reduced the balance. Given that the parties of these transactions and the applicant herself were a regular income earner, the reasons as to why the increase in the applicant’s balance was not considered as a routine account activity must be also put forth.

It has been observed that in the present case, no examination was conducted in this respect, and neither the employer nor the inferior courts provided strong and plausible grounds in their decisions. Therefore, the Court has considered that the impugned interference was in excess of the limits of the discretionary power conferred upon these authorities. Besides, the inferior courts failed to make any assessment as to the applicant’s argument that the impugned increase in the balance of her bank account was indeed within the scope of routine banking activities. These issues should have been clarified by the inferior courts through an adversarial trial. 

It has been concluded that the administrative and judicial decisions, which found established that the confidence relationship between the employer and the employee had been impaired on account of the applicant, did not demonstrate any plausible, relevant and sufficient grounds to justify that the impugned interference met a pressing social need. 

Consequently, the Court has found a violation of the right to respect for private life safeguarded by Article 20 of the Constitution.

In the present case, it was also examined whether the impugned interference had been lawful within the meaning of Article 15 of the Constitution, which allows for the suspension and restriction of the exercise of fundamental rights and freedoms in times of emergency.

The obligations in exercising the discretionary power within the foreseeable limits and demonstrating the underlying grounds in a plausible manner are applicable also under the conditions of the state of emergency. It has been considered that the measure taken with respect to the applicant, in the absence of any serious, strong and objective grounds which could plausibly justify the suspicion against her, was in breach of these obligations. The Court has therefore concluded that the impugned measure fell foul of the criteria laid down in Article 15 of the Constitution allowing for the suspension and restriction of the exercise of the fundamental rights and freedoms during the state of emergency.