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FOURTH
SECTION
CASE OF YENGİN v. TURKEY
(Application
no. 42091/02)
JUDGMENT
STRASBOURG
20
February 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Yengin v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R.
Türmen,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki, judges,
and Mr T.L.
Early, Section Registrar,
Having
deliberated in private on 30 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42091/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Ali Rıza Yengin
(“the applicant”), on 30 October 2002.
- The
applicant was represented by Mr G. Candoğan, a lawyer practising
in Ankara. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- On
10 May 2005 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the
non-enforcement of a court decision and the excessive length of
administrative proceedings to the Government. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Istanbul. Until 1990, he
worked as an electricity meter reader for the Turkish Electricity
Institution (“TEK” – Türkiye Elektrik
Kurumu). Following the privatisation of electricity distribution,
TEK and the AKTAŞ Electricity Company (“AKTAŞ”)
signed an agreement. As a result, the unit for which the applicant
worked was transferred to AKTAŞ. The applicant was thereafter
employed by AKTAŞ on a contractual basis.
- In
the meantime, in 1993 TEK was divided into two State-owned companies,
namely TEDAŞ (Türkiye Elektrik Dağıtım
A.Ş. – responsible for the distribution of
electricity) and TEAŞ (Türkiye Elektrik Üretim
Şirketi – responsible for electricity production).
- On
21 January 1994 the Supreme Administrative Court annulled the
agreement between TEK and AKTAŞ. Subsequently, on 31 January
1994 the applicant was dismissed from AKTAŞ.
- On
16 June 1994 the applicant applied to TEDAŞ, the successor of
TEK, to be reinstated in his former post. However his request was
rejected.
- Contesting
the refusal of TEDAŞ to reinstate him in his former post, the
applicant initiated proceedings in the Istanbul Administrative Court.
He requested to be reinstated in his former post.
- While
the proceedings were pending, in 1995 BEDAŞ (Boğaziçi
Elektrik Dağıtım A.Ş.) was established as a
subsidiary company of TEDAŞ and became responsible for the
distribution of electricity in Istanbul.
- On
12 November 1997 the Istanbul Administrative Court found in favour of
the applicant and annulled the decision of TEDAŞ refusing to
reinstate the applicant.
- TEDAŞ
appealed against the judgment, requesting that the execution of the
judgment of 12 November 1997 be suspended. On 9 July 1998 the Supreme
Administrative Court dismissed the request for suspension.
- On
30 September 1999, in line with the Istanbul Administrative Court’s
judgment, the Supreme Administrative Court dismissed the appeal filed
by TEDAŞ. This decision was served on the applicant on
9 December 1999.
- While
the proceedings were pending before the Supreme Administrative Court,
on 24 February 1999 the Prime Minister agreed to appoint the
applicant to a similar post in BEDAŞ. Following this decision,
on 29 April 2000 the Director General of BEDAŞ approved the
decision of the Executive Board to appoint the applicant to a post in
its Cağlayan Branch. This decision was served on the applicant’s
representative on 13 May 2000. The applicant did not take up his
duties and as a result the proposal was withdrawn.
- On
4 September 2000 the applicant applied to BEDAŞ to be reinstated
in his post, but his request was rejected.
- On
2 October 2000 the applicant initiated a second set of proceedings
before the Istanbul Administrative Court jointly against TEDAŞ
and BEDAŞ. Pursuant to Article 28 § 3 of the Administrative
Procedure Code, he requested compensation for the failure of the
authorities to comply with the court decision ordering his
reinstatement in his former post. He also requested the payment of
his monthly salary and related monetary entitlements for the periods
during which he had been entitled to assume his duties in accordance
with the judgment of the domestic courts upholding his claim to
reinstatement.
- On
29 May 2001 the Istanbul Administrative Court held that the applicant
should have initiated compensation proceedings or applied to TEDAŞ
within sixty days following the notification of the decision of the
Supreme Administrative Court. It accordingly dismissed the case.
- The
applicant appealed. On 12 May 2004 the Supreme Administrative Court
delivered a partial decision. It decided to uphold the decision of
the Istanbul Administrative Court as regards the applicant’s
claim for payment of his monthly salary and related monetary
entitlements. In this respect, it held that, pursuant to Article 7 of
the Code of Administrative Procedure, the applicant should have
applied to the administrative authorities to request payment of his
monthly salary and other related entitlements within sixty days
following the notification of the domestic court decision which
annulled the administrative decision dismissing him. As regards the
applicant’s second complaint concerning the non-enforcement of
the court decision ordering his reinstatement in his former post, the
court held that this part of the case had been brought within the
ten-year statutory time limit, and was not time-barred. It
accordingly quashed the decision of the Istanbul Administrative Court
in this respect.
- On
28 October 2005 the Istanbul Administrative Court delivered its
decision. It found that following the judgment of the Istanbul
Administrative Court, the applicant had in fact been offered a
position in BEDAŞ (the subsidiary of TEDAŞ). However he had
not taken up his duties. As a result, the court held that the
domestic authorities had fulfilled their obligation to implement the
court decision ordering the applicant’s reinstatement. It
accordingly dismissed the case. This decision was notified to the
applicant on 2 June 2006.
- On
14 June 2006 the applicant appealed and the case is still pending
before the Supreme Administrative Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant alleged two violations of Article 6 § 1 of the
Convention, which provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- In
the first place, the applicant complained about the failure of the
authorities to comply with the court judgment ordering his
reinstatement. Furthermore, he complained that the length of the
administrative proceedings had exceeded the reasonable time
requirement of Article 6 § 1 of the Convention.
Non- enforcement of court decision
- The
applicant alleged that the domestic authorities had not complied with
the court order ordering his reinstatement in his former post.
- The
Government argued in the first place that the applicant had not
exhausted domestic remedies in respect of his complaint. They stated
that as the proceedings were still pending before the Supreme
Administrative Court, the applicant’s complaint should be
rejected for non-exhaustion of domestic remedies.
- The
Government further underlined that following the Istanbul
Administrative Court’s judgment of 12 November 1997, the
applicant had in fact been offered a position in BEDAŞ. Although
the decision of the Directorate General of BEDAS had been served on
the applicant’s representative on 13 May 2000 pursuant to
Article 11 of the Law No. 7201 on Notifications, the applicant
did not take up his duties. Consequently, the applicant’s
allegations were unsubstantiated.
- The
applicant argued that the decision concerning his appointment should
have been served on him in person.
- The
Court does not consider it necessary to decide whether the case
pending before the Supreme Administrative Court could be considered
an effective remedy for the applicant’s complaint since this
complaint should be declared inadmissible as being manifestly
ill-founded for the following reasons.
- The
Court reiterates its case-law to the effect that the right of access
to a tribunal guaranteed by Article 6 § 1 of the Convention
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. Execution of a judgment
given by any court must therefore be regarded as an integral part of
the “trial” for the purposes of Article 6 (see, inter
alia, Hornsby v. Greece, judgment of 19 March 1997,
Reports of Judgments and Decisions 1997 II, pp. 510 11,
§ 40 et seq.).
28. Turning
to the facts of the present case, the Court notes that following the
Istanbul Administrative Court’s judgment of 12 November
1997, as upheld by the Supreme Administrative Court on 30 September
1999, BEDAS sent a letter to the applicant’s representative and
informed him that the applicant had been appointed to a post in its
Cağlayan Branch. However, it appears from the documents in the
case file that the applicant did not take up his duties. The Court
observes that the applicant alleged that he had not been notified in
person about this proposal. However, it is clear from the documents
in the file that his lawyer was indeed notified about the decision of
BEDAS on 13 May 2000. As the Government pointed out in their
observations, pursuant to Article 11 of the Code on Notifications, if
a case is entrusted to a legal representative, notification is made
to the legal representative. In the absence of any convincing
explanation from the applicant as to why he did not start working for
BEDAŞ, the Court finds that the national authorities have acted
in accordance with the court judgment dated 12 November 1997 by
offering the applicant a post in BEDAŞ.
It
follows that this complaint is manifestly-ill founded, and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
Length of the administrative proceedings
- The applicant complained that the administrative
proceedings were not concluded within a reasonable time, as required
by Article 6 § 1 of the Convention.
- The
Government contested this argument.
A. Admissibility
- The
Court notes that the applicant’s complaint regarding the length
of the administrative proceedings is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
Court observes that the proceedings in dispute began on 2 October
2000 and are still pending before the Supreme Administrative Court.
They have thus lasted more than six years.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II).
- In
the present case, the Court notes that the case before the
administrative courts was not particularly complex, as it concerned
the applicant’s request for compensation. Furthermore, no
delays can be imputed to the applicant. As to the conduct of the
authorities, it is to be noted that the domestic courts delivered
three decisions during a period of six years. However, it cannot be
overlooked that a lengthy period – almost three years –
elapsed while the case was pending before the Supreme Administrative
Court (paragraphs 16 17 above).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Ahmet Kılıç v. Turkey, no.
38473/02, §§ 32 34, 25 July 2006, and Nuri Özkan
v. Turkey, no. 50733/99, § 21, 9 November 2004). It further
observes that the Government have not put forward any fact or
convincing argument capable of persuading it to reach a different
conclusion in the present case. Having regard to its case-law on the
subject, the Court considers that the length of the administrative
proceedings in the instant case was excessive and failed to meet the
“reasonable time” requirement of Article 6 § 1.
There
has accordingly been a breach of this provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary damage
and EUR 25,000 in respect of non-pecuniary damage.
- The
Government disputed these claims, considering them to be excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court accepts that the applicant must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Taking
into account the circumstances of the case and having regard to its
case-law, the Court awards the applicant a total sum of EUR 1,000
under this head.
B. Costs and expenses
- The
applicant claimed EUR 1,000 for the costs and expenses incurred
before the domestic courts and the Court. However, he did not submit
any receipt or invoice in support of his claims. As for the legal
fees, the applicant relied on the Ankara Bar Association’s list
of recommended minimum fees and requested to be awarded 4,400 new
Turkish liras (YTL) (approximately EUR 2,270).
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant failed to submit any supporting documents in support of
his claim. The Court therefore rejects this claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 of the Convention in respect of the length of the proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following sum to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
1,000 (one thousand euros) for non-pecuniary damage,
(ii) any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
