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SECOND
SECTION
CASE OF GÜRKAN v. TURKEY
(Application
no. 1154/04)
JUDGMENT
STRASBOURG
29 March
2011
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 Gürkan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Ireneu
Cabral Barreto,
David Thór Björgvinsson,
Giorgio
Malinverni,
András Sajó,
Işıl
Karakaş, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 8 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1154/04) 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 Mustafa Gürkan
(“the applicant”), on 3 October 2003. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
16 February 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Kars.
- On
2 March 1998 the applicant, a civil engineer at the Directorate of
the Esenboğa Airport, was appointed to the Directorate of the
Şanlıurfa Airport.
- On
20 March 1998 the applicant brought a case before the Ankara
Administrative Court against the General Directorate of National
Airports (Devlet Hava Meydanları İşletmesi Genel
Müdürlüğü) (“the General
Directorate”) to challenge his transfer to the Şanlıurfa
Airport. He claimed that his transfer had a purely punitive motive,
aimed at penalising him for having uncovered certain irregular
conduct at the General Directorate. He also requested the suspension
of his transfer pending the outcome of the court's final decision.
- On
27 March 1998 the applicant lodged a criminal complaint with the
Ankara Public Prosecutor against his employers in respect of the
aforementioned irregularities. On 30 November 1998 the public
prosecutor issued a decision not to prosecute.
- On
29 April 1998 the Ankara Administrative Court rejected the
applicant's request for suspension of his transfer. On 22 May 1998
the applicant objected to that decision. On 3 June 1998 the Ankara
District Administrative Court dismissed the applicant's objection.
- On
15 July 1998 the applicant requested the Ankara Administrative Court
to hold an oral hearing.
- On
11 November 1998 the Ankara Administrative Court dismissed the
applicant's case, without holding a hearing. It ruled that the
applicant's appointment to the Şanlıurfa Airport had been
effected in view of the needs of the General Directorate and that the
administration had thus acted within its legal discretion and in
accordance with the relevant laws.
- On
22 December 1998 the applicant appealed against the judgment of the
administrative court and requested the suspension of the transfer. He
also requested the Supreme Administrative Court to hold an oral
hearing.
- On
7 April 1999 the Supreme Administrative Court dismissed the request
for suspension.
- On
21 May 1999 the applicant once again requested the suspension of the
administrative act. His request was dismissed by the Supreme
Administrative Court on 9 July 1999.
- On
30 October 2002 the Supreme Administrative Court issued an interim
decision requesting certain information and documents from the
respondent administration, including the applicant's classified
appraisal records (gizli sicil raporları) and a
description of his duties at the new place of assignment. It appears
that the administration submitted the requested information and
documents to the Supreme Administrative Court on 13 December
2002. However, neither the interim decision nor the responses of the
administration were communicated to the applicant.
- On
30 January 2003 the Supreme Administrative Court upheld the Ankara
Administrative Court's judgment of 11 November 1998 by a majority
decision, without holding a hearing. The dissenting judge opined that
the replies provided by the General Directorate to the questions put
to it in the interim decision indicated that the applicant's transfer
had been based on subjective grounds and not on any public need as
alleged. Upon service of the Supreme Administrative Court's decision,
the applicant found out about the interim decision of 30 October 2002
and the administration's submissions in reply, including his
appraisal grades which had apparently fallen following the various
actions he had brought against the administration.
- On
30 April 2003 the applicant requested the rectification of the
Supreme Administrative Court's decision, complaining, inter alia,
of the non communication of the interim decision of 30 October
2002 and the General Directorate's replies thereto, which had
prevented him from responding to its arguments. In the same letter,
the applicant also attempted to challenge the accuracy of the
information provided by the General Directorate.
- On
15 September 2004 the Supreme Administrative Court dismissed the
applicant's rectification request, holding that none of the reasons
put forth by the applicant for rectification fell within the
exhaustive list of permissible grounds for rectification indicated in
Section 54 (1) of Administrative Procedure Act (Law no. 2577).
II. RELEVANT DOMESTIC LAW
- According
to Section 16 (1) and (2) of the Administrative Procedure Act, after
a claimant lodges a case with the administrative court, his or her
submissions are transmitted to the defendant party. The initial
written pleadings of the defendant in response are communicated to
the claimant, who submits his or her replies thereto. The claimant's
replies are then sent to the defendant, who is invited to submit his
or her final pleadings, to which the claimant cannot reply.
- According
to Section 17 (1) of the Administrative Procedure Act, an oral
hearing will be held in administrative proceedings involving, inter
alia, an action for annulment of an administrative act (iptal
davası), upon request of either one of the parties.
- According
to Section 17 (3) of the Administrative Procedure Act, a request for
an oral hearing can be made by the parties only at certain stages of
the administrative proceedings, that is at the time of bringing the
case by the claimant, or as part of the subsequent written pleadings
and replies submitted to the court by the parties (see paragraph 17
above).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the administrative proceedings in question had been
incompatible with the “reasonable time” requirement, that
the Supreme Administrative Court's interim decision of 30 October
2002 and the administration's responses thereto had not been
communicated to him, in breach of the principle of equality of arms,
and that he had been denied a fair trial on account of the lack of an
oral hearing before the Ankara Administrative Court and the Supreme
Administrative Court despite his explicit requests.
A. Admissibility
- The
Government asked the Court to dismiss these complaints for failure to
exhaust domestic remedies, as required by Article 35 § 1 of the
Convention. They maintained that the applicant had not raised any of
these complaints before the domestic courts.
- As
far as the complaint regarding the length of proceedings is
concerned, the Court reiterates that it has already examined and
rejected similar objections of the Government alleging failure to
exhaust domestic remedies (see Karakullukçu v. Turkey,
no. 49275/99, §§ 27 28, 22 November 2005).
The Court finds no particular circumstances in the instant case which
would require it to depart from its findings in the above mentioned
application. It therefore rejects the Government's objection in
relation to this complaint.
- As
regards the complaint concerning the non-communication of the Supreme
Administrative Court's interim decision and the documents submitted
by the administration in response, the Court notes that the applicant
did raise the substance of this complaint before the Supreme
Administrative Court (see paragraph 15 above). It therefore rejects
the Government's objection under this head.
- Lastly,
as for the complaint concerning the absence of an oral hearing, the
Court notes that the applicant had expressly requested an oral
hearing before both instances (see paragraphs 8 and 10). Inherent in
this request was the applicant's conviction that the administration
of justice would be better served by affording him a right to
explain, on his own behalf or through his representative, his
personal situation. It is therefore fair to hold that the lack of an
oral hearing at both stages had, in the applicant's opinion,
prejudiced his right to a fair hearing, although he did not expressly
formulate his complaint in these terms before the domestic courts. In
the light of the foregoing, and bearing in mind that the rule of
exhaustion of domestic remedies must be applied with some degree of
flexibility and without excessive formalism (see the Akdivar and
Others v. Turkey judgment of 16 September 1996, § 69,
Reports of Judgments and Decisions 1996 IV), the Court
considers that the Government's objection under this head should be
dismissed.
- The
Court further notes that this part of the application is not
manifestly ill-founded, within the meaning of Article 35 § 3 of
the Convention, and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Length of administrative proceedings
- The
Government contended that the length of the proceedings could not be
considered to be unreasonable in view of the total number of
decisions delivered by the administrative courts, including various
decisions on the applicant's suspension requests and an interim
decision. They argued in this regard that the applicant had
contributed to the prolongation of the proceedings by making full use
of the procedural measures available to him, such as requesting the
suspension of his appointment numerous times and resorting to the
extraordinary remedy of rectification. They also maintained that
there was no delay in the proceedings that could be attributed to the
authorities.
- The
Court notes that the proceedings in question commenced on 20 March
1998, when the applicant brought the case before the Ankara
Administrative Court, and ended on 15 September 2004, when the
Supreme Administrative Court rejected his rectification request. They
therefore lasted six years and six months before two levels of
jurisdiction.
- The
Court further notes that it has frequently found violations of
Article 6 § 1 of the Convention in applications raising issues
similar to the one before it (see, for instance, Şenol
Uluslararası Nakliyat, İhracat ve Ticaret Limited Şirketi
v. Turkey, no. 75834/01, §§ 23-28, 20 May 2008). 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
circumstances. The Court particularly notes that, whilst the numerous
requests made by the applicant for the suspension of his appointment
might have slightly prolonged the proceedings, the applicant's
conduct may in no way justify their entire length. In any event, the
applicant cannot be blamed for making full use of the remedies
available to him under domestic law (see, amongst other authorities,
Girardi v. Austria, no. 50064/99, § 56, 11 December
2003). The Court further observes that the case was before the
Supreme Administrative Court alone for five years and ten months
pending the appeal and rectification procedures. This delay, which
remains unjustified, contributed substantially to the overall length
of the proceedings.
- Having
regard to its case-law on the subject, the Court therefore considers
that 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 of the
Convention.
2. Non-communication of the Supreme Administrative
Court's interim decision and the responses of the administration
- The
Government argued that the principle of equality of arms had not been
prejudiced in the instant case on account of the non communication
of the documents in question as both the applicant and his lawyer had
had access to the case file throughout the proceedings.
- The
Court reiterates that the principle of equality of arms requires each
party to be given a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent (A.B. v. Slovakia, no. 41784/98,
§§ 55 and 56, 4 March 2003).
- The
Court notes in the instant case that on 30 October 2002 the Supreme
Administrative Court delivered an interim decision, where it
requested the General Directorate to submit certain information and
documents in relation to the applicant's allegations. The applicant
was not informed of this decision. Subsequently, the General
Directorate presented the requested documents to the Supreme
Administrative Court, along with its written replies. These
submissions, which later formed the basis of the Supreme
Administrative Court's decision in the administration's favour, were
not communicated to the applicant prior to the delivery of the
decision. The applicant only learned of the interim decision and the
General Directorate's replies upon the service of the Supreme
Administrative Court's decision refusing his appeal. The applicant
was therefore denied the opportunity to respond to the information
and documents provided to the appellate court by the General
Directorate and to challenge their accuracy before that court.
- The
Court notes at the outset that the Government's argument that the
case file was open to the parties' examination implies a duty on the
applicant and his lawyer to take the initiative and inform themselves
periodically on whether any new elements have been included in the
case file. In the Court's opinion, this would amount to imposing a
disproportionate burden on the applicant and his lawyer (see, mutatis
mutandis, Meral v. Turkey, no. 33446/02, § 36, 27
November 2007). Moreover, this would not necessarily have guaranteed
a real opportunity to comment on the defendant party's submissions in
the instant case, bearing in mind that the Supreme Administrative
Court delivered its decision very shortly after receiving these
submissions, that is within one and a half months. The applicant
therefore had a very small window of opportunity to become acquainted
with the General Directorate's replies and the documents appended
thereto and to put forward his counter-arguments before the appellate
court.
- The
Court moreover considers that, regardless of whether or not the
applicant had a theoretical right of access to the documents in the
case file, the onus was on the Supreme Administrative Court to ensure
the applicant's proper participation in the proceedings and thus to
afford him an opportunity to comment on the administration's
submissions prior to its decision (see, H.A.L. v. Finland, no.
38267/97, § 45, 27 January 2004; Milatová and Others
v. the Czech Republic, no. 61811/00, § 65, ECHR 2005 V).
What is at stake is the litigants' confidence in the workings of
justice, which is based on, inter alia, the knowledge that
they have had the opportunity to express their views on every
document in the file (Nideröst Huber v. Switzerland
judgment of 18 February 1997, § 29, Reports 1997-I).
- The
Court lastly notes that although the applicant attempted to challenge
the administration's submissions in his subsequent rectification
request, the limited scope and nature of the rectification procedure
did not allow the assessment of the applicant's counter-arguments,
which necessitated a reconsideration of the facts and evidence.
- In
the light of the foregoing, the Court finds that there has been a
violation of Article 6 § 1 of the Convention on account of the
non communication to the applicant of the Supreme Administrative
Court's interim decision and the submission made by the General
Directorate upon that court's request.
3. Lack of an oral hearing
- The
Government argued that the applicant had failed to request the
holding of an oral hearing before the Ankara Administrative Court.
They maintained that if he had made such a request, the
administrative court would have been bound by Section 17 (1) of the
Administrative Procedure Act to hold a hearing on account of the
nature of the action, that is an action for annulment of an
administrative act (iptal davası).
- The
Court notes from the documents submitted by the applicant to the case
file, which were also transmitted to the Government at the time of
the communication of the application, that the applicant had lodged a
request for an oral hearing with the Ankara Administrative Court on
15 July 1998, contrary to the Government's allegations. The
Government, however, have failed to indicate in their observations
whether the applicant's request for an oral hearing had been
dismissed for having been lodged outside the time-frames indicated in
Section 17 (3) of the Administrative Procedure Act (see paragraphs
17-19 above). It is similarly not possible to determine the reasons
for such refusal from the other documents in the case file, including
from the Ankara Administrative Court's decision of 11 November 1998
itself.
- The
Court, however, considers in any event that in the light of its
findings under Article 6 § 1 of the Convention above (see
paragraph 37), no separate examination of the instant complaint is
necessary.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that his
transfer to Şanlıurfa had adversely affected his private
life and under Article 13 that the administration had attempted
to interfere with his right to an effective remedy by penalising him
with lower appraisal marks for having made use of available domestic
remedies.
-
In the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court does
not find that these complaints, which are largely unsubstantiated,
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols (see, for instance,
Fahrettin Aydın v. Turkey, no. 31695/02,
§ 31, 29 January 2008).
- It
follows that these complaints should be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for pecuniary and non pecuniary
damage. Accordingly, the Court considers that there is no call to
award him any sum on that account.
- However,
the applicant submitted a claim for translation expenses incurred
before the Court, in the amount of 234.64 Turkish liras (TRY)
(equivalent to approximately 110 euros (EUR)).
- The
Government contested this claim.
- According
to the Court's case-law, 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 are
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 full amount claimed by the
applicant.
- 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 complaints under Article 6 § 1
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the administrative proceedings and the non-communication to the
applicant of the interim decision of the Supreme Administrative Court
and the submissions of the administration in reply;
3. Holds that there is no need to examine separately the
applicant's complaint under Article 6 § 1 of the Convention
regarding the lack of an oral hearing in the administrative
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, EUR 110 (one
hundred and ten euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into
Turkish liras at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 29 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
