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SECOND
SECTION
CASE OF ÜLGER v. TURKEY
(Application
no. 25321/02)
JUDGMENT
STRASBOURG
26
June 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 Ülger v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs A.
Mularoni,
Ms D. Jočienė, judges,
and Mrs F. Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25321/02) 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 Muharrem Ülger
(“the applicant”), on 10 June 2002.
- The
applicant was represented by Ms N. Ünal, a lawyer practising in
Ankara. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant complained, in particular, that the failure to execute a
final judgment given in his favour had been incompatible with the
Convention. He invoked Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in that respect.
- On
13 December 2005 the Court decided to give notice of the application
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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Ankara.
- He
worked in a construction yard in Russia for a Turkish Company,
YAPITEK Construction, Industry and Commerce Limited Corporation
(hereinafter “the company”), from 14 October 1996 until 9
May 1998.
- On
28 June 1999, the applicant brought a case against the company before
the Ankara Labour Court. He claimed that the company had made him
stay and wait for four months in Turkey where he had returned for a
holiday. However, he was neither sent back to Russia nor given work
in Turkey. He submitted that no payment had been made to him
concerning his salary for this period and that he had not been
notified of the termination of his contract. He requested the court
to rule on his unpaid salary and compensation for the length of his
service (kıdem tazminatı) and the lack of any
dismissal notice (ihbar tazminatı), together with
interest.
- On
1 July 1999 the court made the first examination on the case file and
decided to hold a hearing on 5 October 1999, before which date the
company was required to submit its replies, with any evidence.
- The
defendant did not appear at the hearings of 5 October and 18 November
1999 although the summons had been duly served.
- On
27 January 2000 the court took evidence from two of the witnesses
whom the applicant wished to have examined, who were his co-workers
at the construction yard. The applicant's lawyer stated that they
would ensure that a third witness would be present at the next
hearing.
- On
21 March 2000 the court heard the third witness. At the end of the
hearing, the court decided to obtain an expert report and,
accordingly, sent the case file to the expert after the necessary fee
had been deposited by the applicant.
- The
first expert report dated 12 April 2000 stated that the company was
liable to pay the applicant compensation for his length of service,
for non-notification of the termination of his contract and for his
unpaid salary. The amounts due were also assessed in the report.
- On
28 April 2000 the applicant's lawyer objected to the report, claiming
that the amounts were insufficient and requesting that it be reviewed
by another expert.
- On
4 May 2000, the court decided to obtain an additional expert report
from the same expert once an additional fee had been deposited by the
applicant. Accordingly, a second report was prepared by the same
expert and submitted to the court. This report stated that the claim
made by the applicant's representative was valid in respect of the
amount of compensation for his length of service. This should have
been in the sum of 787.5 US dollars. The applicant's lawyer
challenged that report and requested a further assessment, to be made
by another expert.
- The
applicant's representative did not attend the hearing on 20 June
2000. The court decided to discontinue the proceedings unless a
request for resumption was put before it. Upon the request by the
applicant's lawyer, the case was reinstated on 26 June 2000 and a
hearing was scheduled for 13 July 2000.
- On
13 July 2000 the court decided that, if the necessary fees were
deposited by the applicant within three days, an order would be sent
to the defendant requesting payslips showing that the applicant had
been paid a salary for five months after he had returned to Turkey.
The company would be warned that, unless these payslips were
provided, it would be assumed that no salary had been paid. The
hearing was postponed to 5 October 2000. The defendant company
did not respond to the order despite the formal warning.
- On
5 October 2000 the court decided to obtain another expert report, the
cost of which was to be paid by the applicant. The report, in which
the abovementioned five-month period had been taken into account, was
submitted to the court on 27 November 2000.
- On
18 January 2001 the applicant's lawyer requested that another case
pending before the court, which was grounded on the same facts and in
which additional compensation had been claimed, be joined to the
present case. The court decided to join the proceedings as requested
and postponed the hearing to 13 March 2001.
- On
13 March 2001 the Ankara Labour Court awarded the applicant
9,424.50 US dollars in total in compensation for the length of
his service, the lack of dismissal notice and his unpaid salary. In
the judgment, it was stated that the proportionate court fee for the
judgment was 524,190,700 Turkish liras.
This fee, less the amount paid by the applicant at the beginning of
the proceedings, was to be borne by the defendant company.
- On
22 May 2001 the court ordered the bailiffs' tax office to levy the
court fee from the company.
- On
10 December 2001 the applicant's lawyer submitted a petition to the
court, in which she requested that the judgment be served on her to
enable the commencement of enforcement proceedings. She stated that
the applicant had won his case whilst the defendant company, in
addition to the payment of compensation, had been held liable for the
legal costs and charges. She pointed out the risk that the company,
which had a known address at the time of the judgment, would attempt
to evade its obligations by moving elsewhere, on account of its
financial crisis. She further maintained that the applicant would be
willing to pay the court costs in order to obtain the judgment, but
did not have sufficient means to do so.
- On
the same day the court rejected this request on the ground that it
was impossible under Article 28 (a) of the Law on Charges
(Law no. 492) to serve a copy of the judgment unless the court
costs had been discharged.
- The
applicant was therefore unable to bring enforcement proceedings in
order to have the abovementioned judgment executed. In the meantime,
the company has apparently relocated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant Articles of the Law on Charges (Law no. 492 of 2 July
1964) read as follows:
Article 28 § 1 – “The time-limit for
the payment of charges”
“The proportional charges set out in scale no.1
shall be paid within the following periods:
(a) One quarter of the charges for the judgment and the
writ shall be paid beforehand and the rest shall be paid within two
months of the judgment's delivery. The writ shall not be served on
the party concerned unless the [court] charges for the judgment and a
writ of execution are paid....”
Article 32- “Non-payment of charges”
“As long as the relevant charges for the judicial
processes are not paid, the subsequent processes shall not be
executed. If the charges which were not paid by the party concerned
are paid by the other party, the process shall be continued and the
amount shall be taken into consideration in the judgment without the
need for any request to this effect.”
Article 37 § 1
“Charges not paid within the periods foreseen in
this Law shall be notified by the court or legal office to the
relevant tax office within fifteen days from the expiry of the
abovementioned time-limit, and the charges shall be recuperated by
the tax office. This order shall include the nature and amount of the
charge and the tax-payer's details, including the address.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the length of the civil proceedings against
the company had been excessive and that he had been unable to enforce
the judgment in his favour owing to the refusal of the domestic court
to provide him with a copy. He further alleged that the
non-enforcement of that judgment had violated his right to the
peaceful enjoyment of his possessions. He relied on Article 6 §
1 of the Convention and Article 1 of Protocol No. 1, which read
as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a... hearing within a
reasonable time ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted that the application must be rejected for
failure to comply with the requirement of exhaustion of domestic
remedies under Article 35 § 1 of the Convention. They contended
that the applicant had failed to avail himself of the remedy provided
by domestic law. They claimed that the proceedings would continue if
the charges that had not been paid by the responsible party were paid
by the applicant. They referred to the Court's decision on the case
of Poghosyan v. Armenia (no. 36211/03, 5 October
2006) by which it declared the application inadmissible for
non-exhaustion of domestic remedies. They maintained that, in that
case, the Court had examined whether the failure of the applicant to
institute proceedings had been a result of a State omission or the
applicant's own actions, and had concluded that the applicant had
failed to take all possible and accessible measures to advance the
enforcement of the judgment. They maintained that, in the instant
case, regard should also be had to the fact that the debt arising
from the judgment was not owed by a State enterprise but by a private
limited company.
- The
Court notes that in the abovementioned case the relevant domestic
authorities had instituted enforcement proceedings and undertaken all
the necessary measures in order to recover the debt arising from the
domestic court's judgment. Therefore, they had in fact started
executing the judgment in respect of which the applicant was expected
to apply to the relevant court with a concrete claim pursuant to the
domestic law. It remained to the Court to determine whether that
applicant's failure to institute proceedings had been the result of a
State omission or his own action. The Court, duly noting that the
domestic court had not treated the applicant's case with sufficient
diligence, nevertheless accepted that this fact did not prevent the
applicant from re-applying to the same first-instance court at any
time with a properly drafted claim, as required by the domestic law.
Thus, the Court concluded that the applicant himself had failed to
take all the possible and accessible measures to advance the
enforcement of the judgment, and declared the application
inadmissible for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 and 4 of the Convention.
- However,
in the present case, the Court observes that the applicant had duly
applied to the relevant authority, the Ankara Labour Court, to obtain
a copy of the judgment in order to have it executed. The applicant's
request was refused on the ground that there were outstanding court
costs to be paid by the other party. The Court notes that there was
no other authority to which the applicant could have or should have
applied to ensure the enforcement of the judgment of the Ankara
Labour Court under the domestic law of the respondent State.
Therefore the applicant used the only domestic remedy available to
him. Consequently, the Government's objection in this respect must be
rejected.
- The
Government further maintained that the applicant's complaint must
also be dismissed for non-compliance with the six-month rule under
Article 35 § 1 of the Convention. In this connection, they
contended that the judgment given in the applicant's favour had been
delivered on 13 March 2001 and that, according to Article 28 (a)
of the Law on Charges, the court costs should have been paid within
two months of that date. After the expiry of the two month period on
21 May 2001, the court, in compliance with Article 37 of the Law on
Charges, ordered the bailiffs' tax office to recover the unpaid
charges from the company. From this date until the reply given to the
applicant's petition of 10 December 2001, no further proceedings were
conducted since the costs had not been paid by the defendant. They
argued that the applicant was therefore aware of the fact that the
judgment would not be served on him unless he paid the necessary
charges long before his petition of 10 December 2001.
- The
applicant disputed the Government's argument and claimed that his
claim had not arisen on account of the court's judgment but because
of the non-enforcement of it. Thus, the date of the judgment could
not be taken as the starting point of the six-month time-limit.
Instead, the relevant date was 10 December 2001, when the domestic
court explicitly stated that the judgment would not be served on him,
in other words, when the enforcement had been prevented.
- The
Court reiterates that, if no remedies are available or if they are
judged to be ineffective, the six-month time-limit in principle runs
from the date of the act complained of. Special considerations could
apply in exceptional cases where an applicant first pursues a
domestic remedy and only later becomes aware, or should have become
aware, of the circumstances which make that remedy ineffective. In
such a situation, the six-month period might be calculated from the
time when the applicant becomes aware, or should have become aware,
of these circumstances (see Hazar and Others v. Turkey (dec.),
no. 62566/00, 10 January 2002).
- The
Court notes that on 10 December 2001 the domestic court refused the
applicant's request to have the judgment served on him. He lodged his
application with the Court on 10 June 2002 that is exactly within six
months of 10 December 2001. The Court therefore dismisses the
Government's objection of failure to comply with the six-month rule.
-
The Court further notes that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor are they inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
- The
Government submitted that, in the present case, the length of the
proceedings had not exceeded a reasonable time. They argued that the
court had collected evidence, had obtained three expert reports and
had heard the applicant's witnesses. The case had been concluded
within a period of less than two years and without any period of
inactivity. They contended that, in these circumstances, the length
of the case could not be regarded as excessive.
- They
further stated that, at the outset, what was at stake in this case
was not a refusal by the authorities to enforce the judgment. The
reason for this non-enforcement was that it was impossible to serve
the judgment on the applicant without the necessary charges first
being paid. They added that the non-service of the judgment on the
applicant was therefore in compliance with the domestic law and that
the court had sent an order to the bailiff's tax office for the
recovery of the charges from the defendant company.
- They
contended that the lodging of enforcement proceedings would have been
possible if the court costs had been paid by the applicant.
Article 32 of the Law on Charges provided that subsequent
proceedings would not be conducted unless the relevant charges were
paid, but also that any payments made by the successful party would
be taken into account at the end of the proceedings. That is to say,
the applicant had the possibility to pay the charges, thereby
starting the enforcement proceedings, and then have this amount
recovered, together with the rest of the debt. They concluded
therefore that the applicant should bear the responsibility for the
non-execution of the judgment in his favour, since he had refused to
use this opportunity under domestic law.
- The
applicant maintained that, by virtue of this law, the State was
empowered to collect the charges from those whose loss had already
been recognised by the courts, victimising once more the injured
party. He added that, because of this practice, parties in the right
could not obtain the sums awarded by court orders if they did not or
could not pay the charges which should be borne by the losing party.
1. Article 6 § 1 of the Convention
- The
Court reiterates that Article 6 § 1 of the Convention secures to
everyone the right to have any claim relating to his or her civil
rights and obligations brought before a court or tribunal; in this
way it embodies the “right to a court”, of which the
right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect. However, that right
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. It would be inconceivable that Article 6
§ 1 should describe in detail procedural guarantees afforded to
litigants – proceedings that are fair, public and expeditious –
without protecting the implementation of judicial decisions; to
construe this provision as being exclusively concerned with access to
a court and the conduct of proceedings could lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention. 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 § 1 (see Hornsby v. Greece,
judgment of 19 March 1997, Reports 1997-II, p. 510, § 40,
and Burdov v. Russia, no. 59498/00, § 34, ECHR
2002 III).
- In
so far as enforcement proceedings constitute an integral part of the
trial, the Court considers that the right to a court, along with
access to first instance and appeal courts for the determination of
“civil rights and obligations” (see Kreuz v. Poland,
no. 28249/95, §§ 53 and 54, ECHR 2001 VI),
equally protects the right of access to enforcement proceedings (see,
mutatis mutandis, Manoilescu and Dobrescu v. Romania
(dec.), no. 60861/00, ECHR 2005 ....).
- With
regard to the present case, the Court considers that the question
whether or not the applicant could have had the court costs
reimbursed after the enforcement of the impugned judgment is not
relevant to the situation he complained of under Article 6 § 1
of the Convention. The issue here is the fact that the obligation to
pay the charges in advance, which should have been borne by the
losing party, prevented him from having the binding judgment in his
favour served on him and, thereafter, from being able to initiate
enforcement proceedings.
- It
is recalled in this connection that the right to have access to a
court is not absolute but may be subject to limitations; these are
permitted by implication since the right of access by its very nature
calls for regulation by the State. However, the Court must be
satisfied that the limitations applied do not restrict or reduce the
access left to the individual in such a way or to such an extent that
the very essence of the right is impaired. Furthermore, a limitation
will not be compatible with Article 6 § 1 if it does not pursue
a legitimate aim and if there is no reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94,
§ 59, ECHR 1999 I, and Apostol v. Georgia,
no. 40765/02, § 57, ECHR 2006 ...).
- The
Government submitted that the reason for the non-enforcement of the
judgment had been the impossibility under domestic law of serving the
judgment on the party concerned unless the outstanding court costs
had been paid. However, the Court notes that, by invoking Article 28
(a) of the Law on Charges, the court imposed on the applicant a
financial obligation, failure to comply with which barred his access
to the judgment and thus to the further enforcement proceedings.
- The
Court recalls that in order to determine whether or not a person has
enjoyed the right of access, the reasonableness of the amount of the
court costs imposed is to be assessed in the light of the particular
circumstances of a given case, including the applicant's ability to
pay them, and the phase of the proceedings at which that obligation
has been imposed (see Kreuz, cited above, § 60). In this
connection, the Court observes that the applicant was a construction
worker. He brought the proceedings against the respondent company to
obtain his unpaid salary. The court partly accepted the applicant's
claim and awarded him approximately EUR 10,000 in compensation.
The remaining court costs were around EUR 598. The applicant,
although apparently willing to pay the charges in order to obtain
what he was owed, no longer had sufficient means to do so.
- The
Court reiterates that the fulfilment of the obligation to secure
effective rights under Article 6 § 1 of the Convention does not
only mean the absence of an interference but may also require
positive action on the part of the State (see Kreuz, cited
above, § 59). It considers that by shifting to the applicant the
full responsibility to meet the court costs, the State avoided its
positive obligation to organise a system for the enforcement of
judgments which is effective both in law and in practice (see Fuklev
v. Ukraine, no. 71186/01, § 84, 7 June 2005).
Thus, some consideration should also have been given in the present
case to the reasonable relationship of proportionality (paragraph 41
above) between the amount and payment of the court costs, the
applicant's ability to pay them and the work required for the task in
hand, i.e. merely providing him with a copy of the judgment.
- In
the light of the above considerations, the Court finds that holding
the applicant responsible for the payment of the charges before he
could receive a copy of the judgment imposed an excessive burden on
him and restricted his right of access to a court to such an extent
as to impair the very essence of that right.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
- Finally,
the Court notes that, in the present case, the length of proceedings
constituted an integral part of the applicant's complaint about the
non-execution of the judgment. Therefore, it does not find it
necessary to examine this aspect of the complaint separately.
2. Article 1 of Protocol No. 1
- The
Court reiterates that a “claim” may constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established so as to be enforceable (see
Burdov v. Russia, cited above, § 40, and Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of
9 December 1994, Series A no. 301-B, p. 84, § 59). The
judgment of 13 March 2001 provided the applicant with an
enforceable claim.
- It
follows that the impossibility for the applicant to have the decision
enforced constituted an interference with his right to the peaceful
enjoyment of his possessions, as set forth in the first sentence of
the first paragraph of Article 1 of Protocol No. 1.
- In
the absence of any justification for that interference, the Court
concludes that there has also been a violation of Article 1 of
Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention that
the domestic court's decision had remained inoperative on account of
the obstacle created by the domestic court.
- The
Court notes that this complaint is linked to those examined above and
must therefore be declared admissible. However, having regard to the
violations found under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 (paragraphs 46 and 50
above), the Court does not consider it necessary to examine
separately the applicant's allegations under this head.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained of violations of Articles 1 and 17 of the
Convention without any specific reasoning.
- The
Court finds nothing whatsoever in the case file which might disclose
any appearance of a violation of these provisions. It follows that
this part of the application is manifestly-ill founded and must be
rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
VI. 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 EUR 15,005 in respect of
pecuniary damage and EUR 50,000 for non-pecuniary damage.
- The
Government disputed these claims.
- The
Court notes that the pecuniary damage sustained by the applicant
related to the non-enforcement of the judgment awarding him
compensation. Having regard to the amount awarded to the applicant by
that judgment as well as the economic circumstances at the material
time, the Court awards the applicant EUR 10,000 in respect of
pecuniary damage. This award should be in final settlement of the
applicant's outstanding domestic claim.
- The
Court considers that the applicant has also suffered non-pecuniary
damage as a result of the violations found. However, the particular
amount claimed is excessive. Making its assessment on an equitable
basis, the Court awards the applicant the sum of EUR 1,000 under this
head.
B. Costs and expenses
- The
applicant also claimed EUR 3,198 in respect of costs and expenses
incurred before the domestic court and EUR 3,618 for those incurred
before the Court.
- The
Government contested the claims, arguing that the applicant had
failed to substantiate them.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
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, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 covering costs and expenses
under all heads.
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 Articles 6
§ 1 and 13 of the Convention and Article 1 of Protocol No. 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine
separately the complaint under Article 13 of the Convention;
- 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
sums, to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR 10,000 (ten thousand euros) for pecuniary damage;
(ii) EUR 1,000 (one thousand euros) for non-pecuniary damage;
(iii) EUR 1,500 (one thousand five hundred euros) for costs and
expenses;
(iv) 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 amounts 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 26 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F Tulkens
Deputy Registrar President
