Yılmaz v. Turkey

Information Note on the Court’s case-law 230
June 2019
Yılmaz v. Turkey - 36607/06
Judgment 4.6.2019 [Section II]
Article 8
Article 8-1
Respect for private life
Refusal to appoint a teacher to a post abroad because his wife wore a veil: violation
Facts – The applicant, a teacher of religious culture who was already employed by the public education service, passed a competitive examination for a teaching appointment abroad; he then even attended a preparation seminar. However, a note drawn up following an investigation under the Directive on Security indicated that his wife wore an Islamic veil outside work and that gender segregation was practised at the couple’s home. On that basis, the Ministry’s Evaluation Board opposed the applicant’s appointment to a post abroad.
Law – Article 8
(a) Applicability – Disputes relating to the performance of professional duties could interfere with private life in two ways: either because of the consequences of the measure in question, or because of the underlying reasons for it (see Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221).
In the present case, it appeared from the decisions by the administrative courts that the refusal to appoint the applicant had been based on the findings of a security investigation that had revealed information about his private life, such as his way of life and his wife’s clothing. A previous arrest had also been mentioned, even though it had given rise to a decision not to prosecute.
No professional or administrative grounds had been put forward. Nor had the administrative authorities explained how the information obtained following the security investigation was capable in itself of barring the applicant from taking up duties abroad.
Accordingly, the refusal to appoint the applicant had been based solely on grounds relating to his private life. Article 8 was therefore applicable.
(b) Merits – On account of those grounds, the refusal to appoint the applicant amounted to interference with his private life.
Even assuming that such interference had been in accordance with the law – the authorities having merely referred to a circular and a directive – and could be said to have pursued one of the legitimate aims recognised by Article 8, it had not been necessary in a democratic society.
In finding that the applicant was not fit to take up a post abroad, the Ministry of Education had simply referred to the “public interest” and “imperative needs”, without providing any explanations of the public-interest requirements or grounds involved or the specific features of the educational and teaching services that could have clarified why a teacher already employed by the Ministry in charge of those services could not be offered a post abroad.
The Evaluation Board had not expressed a view on the applicant’s competence or ability to perform the duties in question but had solely taken account of the findings of the security investigation. Those findings had attached paramount importance to aspects of the applicant’s and his wife’s private life, in particular the fact that she wore a veil.
Admittedly, the Court did not rule out that in some circumstances, the specific requirements of public service might dictate that consideration should be given to findings made in the course of security investigations.
Nevertheless, it failed to see in the present case how the fact that the applicant’s wife wore a veil and the way he behaved at home could run counter to public-interest imperatives or the needs of the teaching and educational services.
As regards the applicant’s previous arrest, it had not given rise to a prosecution and had also not constituted grounds for barring him from employment in the public education service.
Conclusion: violation (unanimously).
The Court also unanimously found a violation of Article 6 § 1 on account of the length of the proceedings.
Article 41: no claim made in respect of damage.
 
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This summary by the Registry does not bind the Court.
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