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SECOND
SECTION
CASE OF MECİT BOZKURT
v. TURKEY
(Application
no. 7089/07)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Mecit Bozkurt v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 7089/07) 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 Mecit Bozkurt (“the applicant”),
on 23 January 2007.
- The
applicant was represented by Mr R. Erkuş, a lawyer practising in
Gaziantep. The Turkish Government (“the
Government”) were represented by their Agent.
- On
4 September 2009 the
President of the Second Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Kilis.
- At
the time of the events, the applicant was a registrar at the
Gaziantep Tax Court.
- By
a decision of the Ministry of Justice dated 5 November 2000, the
applicant was appointed to the Hatay Tax Court, relying on the
negative report prepared by the Justice Inspector concerning certain
allegations against him.
- On
23 November 2000 the applicant brought proceedings before the
Gaziantep Administrative Court for the annulment of his appointment
to a new post in Hatay.
- On
13 June 2001 the court dismissed the applicant’s case.
- On
17 June 2005 the Supreme Administrative Court quashed the judgment of
13 June 2001.
- On
10 April 2006 the Supreme Administrative Court dismissed a request by
the Ministry of Justice for rectification of the judgment.
- On
11 July 2006 the first-instance court once again dismissed the
applicant’s annulment case.
- On
25 February 2010 the Supreme Administrative Court upheld the judgment
of 11 July 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that argument claiming that
the applicant had failed to exhaust the domestic proceedings as the
proceedings were still pending before the domestic courts at the time
of the application. They further contended that the impugned
proceedings could not be considered to have been excessively long in
view of the complexity of the case. They concluded therefore that
there had been no delay in the proceedings that may be attributable
to the State.
- The
Court notes that the administrative proceedings were terminated on 25
February 2010. Even assuming that they have been pending,
according to its case-law, complaints concerning the length of
proceedings can be brought before it prior to the final termination
of the proceedings in question (see Plaksin v. Russia,
no. 14949/02, §§ 34-35, 30 April 2004). Accordingly, the
Government’s objection regarding non-exhaustion must be
dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- The
period to be taken into consideration began on 23 November
2000 and has ended on 25 February 2010.
It has thus lasted approximately nine years and
three months for two levels of jurisdiction.
- 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 Frydlender v. France
[GC], no. 30979/96, §§ 42-46, ECHR 2000 VII, and
Daneshpayeh v. Turkey,
no. 21086/04, §§ 26-29, 16 July 2009)
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or 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 in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
- The
applicant maintained under Article 8 of the Convention that his
appointment to the new post -which had
compelled him to move to another city- as well as alleged unfounded
accusations against him, had interfered
with his right to respect for family life. He further claimed that
financial consequences arising from his appointment, such as
transportation and accommodation costs, had amounted to a violation
of his rights under Article 1 of the Protocol No. 1 to the Convention
- In the light of all the material in its possession,
the Court finds that the above submissions by the applicant do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols (see Soysal and
Others v. Turkey, nos. 54461/00, 54579/00, and 55922/00,
§ 45, 15 February 2007). It follows that these
complaints must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention
III. 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 24,449 euros (EUR) in respect
of pecuniary damage referring mainly to the transportation and
accommodation costs he had made to see his family. He also claimed
EUR 50,000 in respect of non-pecuniary damage for the distress
caused due to his appointment to a post in another city.
- The
Government contested these claims as being 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 considers that the applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards award him EUR 4,800 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 500 for court fees,
EUR 500 for legal costs and expenses incurred before the
domestic courts and EUR 5,000 in respect of lawyer’s fee.
In support of his claims, the applicant’s lawyer submitted a
document, stating that EUR 2,000 had been paid
to him as lawyer’s fee in relation to the application to the
Court. It was also noted that depending on the success of the case,
the lawyer would receive a supplementary amount between EUR 3,000 and
EUR 5,000. This document bears the signature of only the applicant’s
lawyer.
- The
Government contested these claims.
- The
Court reiterates that an applicant is entitled
to the 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, the Court
considers that the applicant has not
substantiated that he has actually incurred the costs claimed. In
particular, he failed to submit documentary evidence, such as bills,
receipts, a contract, a fee agreement or a breakdown of the hours
spent by his lawyer on the case. In this regard, the document in
question, which was signed only by the
lawyer, does not suffice to conclude that these expenses have been
actually incurred. Accordingly, the
Court makes no award under this head.
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 excessive length of the proceedings
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months 4,800 (four thousand eight hundred) euros, to be
converted into Turkish liras at the rate applicable at the date of
settlement, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle
Berro-Lefèvre
Deputy
Registrar President
