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SECOND
SECTION
CASE OF EKİCİ AND OTHERS v. TURKEY
(Application
no. 28877/03)
JUDGMENT
STRASBOURG
23
September 2008
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 Ekici and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28877/03) 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 five Turkish nationals, Mr Niyazi Ekici, Mr
Şükrü Güntoğar, Mr
Bayram Akbulut, Mr Salih Demircan and Mrs Müzeyyen Kalkan
(“the applicants”), on 22 May 2003.
- The
applicants were represented by Mr S. Çınar,
a lawyer practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- On
3 July 2007, the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
5 May 1999 the applicants were laid off by the Diyarbakır Sur
municipality, with which they had been employed.
- Each
of the applicants brought an action in the Diyarbakır Labour
Court, claiming outstanding salaries, dismissal indemnities,
severance pay and other pecuniary rights.
- On
11 November 1999 the court ruled in their favour and ordered the
municipality to pay the applicants certain amounts in Turkish liras
(TRL), including costs, together with interest running from 15 June
1999.
- In
the absence of an appeal the judgments became final on 22 November
1999.
- In
the following months, as they did not receive any payment, the
applicants requested the Diyarbakır Governorship to
intervene in order to facilitate the enforcement of the court’s
judgments. The Governor’s Office informed the applicants that
it had requested the municipality to redress their grievances.
However, due to lack of funds, the municipality did not make any
payment.
- At
the date of introduction of the present application, the relevant
judgment debts were still outstanding. Therefore, friendly settlement
agreements were reached between the following applicants and the
municipality on the dates indicated:
-
Müzeyyen Kalkan on 15 March 2005;
-
Şükrü Güntoğar on
23 January 2006, and
-
Bayram Akbulut on 11 December 2007.
- No
settlement was reached in respect of the other applicants. However,
the municipality deposited a partial amount in the relevant account
at the local enforcement office, which was made available to the
remaining applicants. On 21 February 2005 Salih Demircan was paid
822 New Turkish liras (TRY).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
138 § 4 of the Turkish Constitution provides:
“The bodies of executive and legislative power and
the authorities must comply with court decisions; they cannot in any
circumstances modify court decisions or defer the enforcement
thereof.”
- Article
28 § 2 of the Code of Administrative Procedure reads:
“Decisions and judgments in administrative law
actions concerning a specific amount shall be enforced ... in
accordance with the provisions of the ordinary law.”
- Under
section 82(1) of the Enforcement and Bankruptcy Act (Law no. 2004),
State property cannot be seized. Likewise, section 19(7) of the
Municipalities Act (Law no. 1580 of 3 April 1930) provides that
municipal property that is assigned to a public service cannot be
seized.
THE LAW
I. THE APPLICANTS’ VICTIM STATUS
- The
Government submitted that, after the application was lodged, the
municipality had invited the applicants to collect the outstanding
amounts payable to them. As a result, three of the applicants had
reached friendly settlement agreements with the municipality.
Although the applicant Niyazi Ekici declined the offer, funds were
made available to him in the account of the local enforcement office.
Salih Demircan was paid TRY 822. The Government therefore asked
the Court to strike the application out of its list of cases.
- The
applicants contended that certain settlements had had to be made due
to their financial vulnerability and that the deposited amounts
merely constituted partial payments.
- The
Court will examine the present application in the light of the
principles enshrined in the judgment of Çiçek and
Öztemel and Others v. Turkey (nos. 74069/01, 74703/01,
76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, §§ 18-26,
3 May 2007).
- The
Court observes that the municipality signed settlement protocols with
Müzeyyen Kalkan, Şükrü
Güntoğar and Bayram Akbulut (paragraph 9 above).
- The
protocols stipulated that these applicants waived any outstanding
domestic compensation claims, rights and other credits including
costs, expenses and legal fees, against the payment of certain lump
sum amounts.
- The
Court considers that their victim status has only been partially
reduced by the agreements they reached. The domestic settlement only
covers their claims under Article 1 of Protocol No. 1. Their
complaints under Article 6 § 1 of the Convention therefore still
require a separate examination.
- With
regard to the amount deposited in the account of the local
enforcement office in favour of Salih Demircan, the Court observes
that this amount failed to correspond to the full awards of the
labour court’s judgments and it fell short of the actual
amounts payable to the applicants under the domestic legislation
regulating the late payment of labour claims. Accordingly, the Court
finds that Salih Demircan can still claim to have been the victim of
violations of both Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1.
- As
regards the applicant Niyazi Ekici, the Court observes that he did
not receive any amount in the execution of the court’s
judgments and finds that he can also claim to have been the victim of
violations of both Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicants complain that the authorities’ failure to pay the
judgment debts breached their right to the
peaceful enjoyment of their possessions. They relied on
Article 1 of Protocol No. 1, which reads, in its relevant part, as
follows:
“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.”
- For
the reasons explained in the preceding paragraphs, the Court limits
the examination of this complaint to the applicants Salih Demircan
and Niyazi Ekici.
A. Admissibility
- In
addition to their submission that the applicants could no longer be
considered victims, the Government also raised the following
objections to the admissibility of the cases.
- First,
the Government argued that the applicants had failed to exhaust
domestic remedies, as they had not initiated enforcement proceedings.
- Secondly,
the Government contended that the complaints under Article 1 of
Protocol No. 1 were manifestly ill-founded, as the judgments of the
labour court remained valid despite the inability of the municipality
to pay the awards made. Accordingly, the Government maintained that
the applicants could not be considered to have been deprived of any
rights.
- The
Court observes that it dismissed similar preliminary objections in
Çiçek and Öztemel and Others (cited
above, §§ 28 39). It sees no reason to do
otherwise in the present application and therefore rejects the
Government’s objections.
- The
Court concludes that the property complaint made by the applicants
Salih Demircan and Niyazi Ekici requires an examination on the merits
and that there are no grounds for declaring it inadmissible.
B. Merits
- 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 as enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 84, § 59).
- The
Diyarbakır Labour Court’s judgments on 11 November 1999
provided the aforementioned applicants with enforceable claims and
not simply a general right to receive support from the State. The
judgments had become final as no appeal was filed against them. It
follows that the impossibility for these applicants to have the
judgments in their favour enforced constituted an interference with
their right to the peaceful enjoyment of their possessions, as set
out in the first sentence of the first paragraph of Article 1 of
Protocol No. 1.
- By
failing to comply with the judgments of the labour court, the
national authorities prevented the applicants from receiving the
money to which they were entitled. The Government have not advanced
any convincing justification for this interference and the Court
considers that a lack of funds cannot justify such an omission (see,
mutatis mutandis, Ambruosi v. Italy, no. 31227/96,
§§ 28-34, 19 October 2000, and Burdov v. Russia,
no. 59498/00, §§ 35 and 41, ECHR 2002 III).
- It
follows that there has been a violation of Article 1 of Protocol
No. 1 in respect of the applicants
Salih Demircan and Niyazi Ekici.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained that the failure by the authorities to
comply with the labour court’s judgments over a long period
breached the “reasonable time” requirement of Article 6
of the Convention, which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time ... by [a] ... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible in respect of all the applicants.
B. Merits
- The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to the individual’s 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 the procedural
guarantees afforded to litigants – proceedings that are fair,
public and expeditious – without protecting the implementation
of judicial decisions; to construe Article 6 as being concerned
exclusively with access to court and the fair conduct of proceedings
would be likely to 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 (see Hornsby
v. Greece, judgment of 19 March 1997, Reports of
Judgments and Decisions 1997-II, p. 510, § 40).
- It
is not open to a State authority to cite lack of funds as an excuse
for not honouring a judgment debt. Whilst a delay in the execution of
a judgment may be justified in particular circumstances, it may not
be such as to impair the essence of the right protected by Article 6
§ 1 (see Immobiliare Saffi v. Italy [GC], no.
22774/93, § 74, ECHR 1999 V). In the instant case, the
applicants should not have been prevented from benefiting from the
success of the litigation on the ground of the alleged financial
difficulties experienced by the Diyarbakır Sur Municipality.
- The
Court notes that the Diyarbakır Labour Court’s judgments
on 11 November 1999 remained wholly unenforced in respect of the
applicants Salih Demircan and Niyazi Ekici. The other three
applicants received a sum of money according to the settlements
reached with the municipality on the following dates:
-
Müzeyyen Kalkan on 15 March 2005;
- For
Şükrü Güntoğar on
23 January 2006, and
-
Bayram Akbulut on 11 December 2007.
- In
the light of these considerations, the Court finds that by failing,
over a period of several years, to take the necessary measures to
comply with the final judicial decisions in the present cases, the
authorities deprived the provisions of Article 6 § 1 of much of
their useful effect.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention in respect of all of the applicants.
IV. 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
- In
respect of pecuniary damage, the applicants claimed various amounts
which, according to them, were equivalent to the sums that the
judgment debts would have become if they had been paid promptly and
deposited in a savings account. Each of them also claimed 6,000 euros
(EUR) in respect of non-pecuniary damage.
- The
Government contested these claims, alleging that they were based on
fictitious calculations. They also submitted that, were the Court to
find violations in the present cases, this would constitute
sufficient compensation for any non-pecuniary damage allegedly
suffered by the applicants.
- The
Court considers that, in accordance with its finding of a violation
of Article 1 of Protocol No. 1 (paragraph 32 above), Salih Demircan
and Niyazi Ekici are entitled to an award for pecuniary
damage. Bearing in mind that the applicants’ complaint related
to the non-payment of awards made in court judgments, the Court finds
that the payment by the Government of those outstanding judgment
debts, including any interest arising under the applicable domestic
law for the late payment of employment claims, would satisfy these
applicants’ claims under this head.
- Given
its finding of a violation of Article 6 § 1 of the Convention on
account of the significant period of time during which the said
judgments remained unenforced, the Court considers that the
applicants’ prejudice cannot be sufficiently compensated by the
finding of a violation alone (Çiçek and Öztemel
and Others, cited above, § 57). Taking into account the
circumstances of the case and having regard to its case-law, the
Court awards EUR 3,000 to each of the applicants in respect of
non pecuniary damage.
B. Costs and expenses
- Each
of the applicants claimed EUR 1,101 for the costs and expenses
incurred during the proceedings before the domestic authorities and
the Court.
- The
Government contended that the applicants’ claims were wholly
unsubstantiated.
- According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually and necessarily incurred, as well as being reasonable
as to quantum (see Sunday Times v. the United Kingdom (no. 1)
(Article 50), judgment of 6 November 1980, Series A no. 38,
p. 13, § 23). The Court observes that the applicants failed to
submit any documentary evidence in support of their submissions under
this head. The Court therefore dismisses the 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 under Article 6 § 1
of the Convention admissible;
- Declares the complaint under Article 1 of
Protocol No. 1 admissible in respect of the applicants Niyazi Ekici
and Salih Demircan and inadmissible in respect of the other
applicants;
- Holds that there has been a violation of Article
1 of Protocol No. 1 in respect of the applicants Niyazi Ekici and
Salih Demircan;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of all of the applicants;
- Holds
(a) that
the respondent State is to pay to Niyazi Ekici and Salih Demircan,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the outstanding amounts of the judgment debts still owed
to them, plus the statutory interest applicable under domestic law;
(b)
that the respondent State is also to pay each of the applicants,
within the same three months period, EUR 3,000 (three thousand euros)
in respect of non-pecuniary damage, to be converted into New Turkish
liras at the rate applicable at the date of settlement and free of
any taxes or charges that may be payable;
(c) 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
