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SECOND
SECTION
CASE OF ABİDİN ŞAHİN v. TURKEY
(Application
no. 45559/04)
JUDGMENT
STRASBOURG
18
December 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 Abidin Şahin 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,
Mrs D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45559/04) 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 Abidin Şahin (“the
applicant”), on 30 April 2003.
- The
applicant was represented by Mr H. Gezer, a lawyer practising in
Gaziantep. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant alleged that the authorities failed to pay his pension
benefits that had been ordered by a judicial decision. He did not
invoke any Articles of the Convention.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Gaziantep.
- In
2000 the applicant retired from his work at the Municipality.
On 28 August 2000 the town council calculated the
applicant's pension benefits at 11,981,741,000 Turkish liras
and ordered its payment.
- On
18 May 2001 the applicant applied to the execution office, requesting
the payment of his pension benefits, plus interest at the rate of
95%. The Municipality objected to the applicant's interest request.
- On
5 June 2001 the applicant filed an action before the Islahiye
Enforcement Court to annul the Municipality's objection.
- On
6 December 2001 the court partially upheld the applicant's request.
It ordered the Municipality to pay the applicant's wages and
indemnities, plus interest at the statutory rate running from 15
September 2000. It upheld the applicant's request in respect of
severance benefit which had to be paid together with interest at the
highest annual bank deposit rate.
- In
the absence of an appeal the judgment became final on 20 December
2001.
- The
execution authority made several unsuccessful attempts to attach the
Municipality's property in order to secure the payment of the debt.
- On
1 August 2002 the applicant sent a letter to the President of the
Republic, complaining about the Municipality's failure to pay his
pension benefits.
- On
9 September 2002 the President's Office forwarded this letter to the
Ministry of the Interior for an inquiry into the matter.
- In
reply, the Mayor of Islahiye explained in his letter of 11 October
2002 that the Municipality's outstanding debts to 60 retired staff
exceeded its budget. He maintained that the Municipality had
therefore offered to make the payments in instalments. However, the
applicant had refused this offer.
- On
6 January 2003 the applicant requested the Gaziantep Governor's
Office to intervene on his behalf in order to facilitate the
execution of the Enforcement Court's decision.
- According
to the information in the case file, as submitted by the parties, the
relevant judgment debt is still outstanding.
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:
“2. 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. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE
CONVENTION
- The
applicant complains that the authorities' failure to pay the judgment
debt breached his right to the peaceful enjoyment
of his possessions. He relied on Article 1 of Protocol No. 1,
which reads 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.
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 asked the Court,
firstly, to dismiss the application as inadmissible for failure to
comply with the six-month time-limit under Article 35 of the
Convention. For the purposes of that provision, time had started to
run on 20 December 2001. However, the applicant had not lodged his
application with Court until 30 April 2003, that is one year and four
months after the final domestic decision.
- The Court notes that the
complaint before it is concerned solely with the authorities' failure
in paying the judgment debt and the damage sustained by the applicant
as a result. Having regard to the information in the case file that
the judgment debt has still not been paid, the Court finds that the
applicant satisfied the requirement of Article 35 in that regard.
This preliminary objection must therefore be dismissed.
- The
Government also argued that the applicant failed to exhaust all
domestic remedies.
- The
Court recalls that a person who has obtained an enforceable judgment
against the State as a result of successful litigation cannot be
required to resort to additional proceedings, such as enforcement
proceedings, in order to have it executed (see Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004).
- The
Court consequently considers 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.
B. Merits
- The
Government maintained that the municipality could not make the
relevant payment since it was underfunded, which was a situation that
fell under the second paragraph of the Article 1 to the Protocol No.
1 and that, therefore justified the non-execution of the judicial
debt.
- 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, no. 59498/00, § 40, ECHR
2002 III and Stran Greek Refineries and Stratis Andreadis v.
Greece, judgment of 9 December 1994, Series A no. 301-B,
p. 84, § 59).
- The
Islahiye Enforcement Court's judgment of 6 December 2001 provided the
applicant with an enforceable claim. The judgment had become final as
no appeal was filed against it, and enforcement proceedings had been
instituted. It follows that the impossibility, for the applicant who
has not accepted the relevant payment in instalments, to enforce the
judgment in his favour constituted an interference with his right to
the peaceful enjoyment of his 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 judgment of the Enforcement Court, the
national authorities prevented the applicant from receiving the money
he was entitled to. 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;
Burdov v. Russia, cited above, §§ 35 and 41).
- It
follows that there has been a violation of Article 1 of Protocol
No. 1
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 100,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 for non-pecuniary damage.
- The
Government contested these sums, alleging that they were based on
fictitious calculations. They also submitted that, were the Court to
find violation in the present case, this would constitute sufficient
compensation for any non-pecuniary damage allegedly suffered by the
applicant.
- Bearing
in mind that the applicant's complaint is related to the non-payment
of a judgment debt, the Court finds that the payment by the
Government of the outstanding amount, including any interest incurred
under the applicable domestic law for the late payment of the
employment claim, would satisfy the applicant's request for pecuniary
damage. The Court further considers that the applicant has sustained
some non-pecuniary damage, which it assesses on an equitable basis at
EUR 1,000.
B. Costs and expenses
- The
applicant claimed EUR 3,000 for the costs and expenses as well as the
lawyer's fee.
- The
Government contended that the applicant's claim was unsubstantiated.
- 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 the Court notes that the applicant did
not submit any documents relating to the costs and expenses or to the
lawyer's fee. Accordingly it rejects the claim 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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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, the amount of the
domestic judgment debt still owed to him, plus statutory interest
applicable under domestic law;
(b) that
the respondent State is also to pay to the applicant the following
sums, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR 1,000 (one thousand
euros) for non pecuniary damage,
(ii) plus any taxes that may be chargeable;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
