Pişkin v. Turkey, No. 33399/18, ECtHR (Second Section), 15 December 2020

Dismissal of a public employee, under an emergency legislative decree, on account of his alleged links with a terrorist organisation, and subsequent judicial review of that measure.

Art. 6 ECHR
Art. 8 ECHR
Art. 15 ECHR

1. Even in the framework of a state of emergency, the fundamental principle of the rule of law must prevail. It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 ECHR if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.

2. Where an emergency legislative decree does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided.

3. Membership of structures organised along military lines or establishing a rigid, irreducible form of solidarity among their members, or else pursuing an ideology contrary to the rules of democracy, a fundamental element of “European public order”, could raise an issue vis-à-vis national security and prevention of disorder where the members of such bodies are called upon to discharge public duties. As a consequence, the assessment by the public authorities or other bodies operating in the civil service sphere of what poses a threat to national security will naturally be of significant weight. Nevertheless, the domestic courts must be able to react in cases where invoking that concept has no reasonable basis in the facts or points to an arbitrary interpretation.

4. Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence. If it were impossible to contest effectively a national security concern relied on by the authorities, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention.
(In the present case, concerning the dismissal of an employee of a public institution on the grounds of his alleged links to a terrorist organisation in the wake of the failed military coup of July 2016, the European Court unanimously found a violation of the right to a fair trial and the right to respect for private and family life under articles 6 and 8 of the Convention).