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THIRD
SECTION
CASE OF SERDAR ÇAKMAK v. TURKEY
(Application
no. 29600/02)
JUDGMENT
STRASBOURG
12
April 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 Serdar Çakmak v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr S. Quesada,
Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29600/02) 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 Serdar Çakmak
(“the applicant”), on 4 June 2002.
- The
applicant was represented by Mr Ç. Yüksel, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
28 April 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the length of the
administrative proceedings 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Istanbul. He was a research
assistant in the Institute for Positive Sciences at the Istanbul
Technical University (hereinafter: “the University”) at
the time of the events.
- On
30 June 1996 the University decided not to renew the applicant's
contract as a research assistant. The applicant was notified of this
decision on 17 July 1996.
- On
30 July 1996 the applicant filed an action with the Istanbul
Administrative Court and requested the annulment, and suspension of
the execution, of the University's abovementioned decision.
- The
applicant's request for suspension was dismissed by the first
instance court on 24 January 1997.
- On
31 October 1997 the Istanbul Administrative Court dismissed the
applicant's case.
- On
20 January 1998 the applicant appealed.
- On
1 June 2000 the Supreme Administrative Court upheld the judgment of
the first instance court.
- On
12 September 2000 the applicant requested the Supreme Administrative
Court to rectify its decision.
- On
6 December 2001 the Supreme Administrative Court dismissed the
applicant's request. This decision was served on the applicant on
16 January 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement,
provided 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...”
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.
B. Merits
- The
Court considers that the period to be taken into consideration in
determining whether the proceedings satisfied the “reasonable
time” requirement laid down by Article 6 § 1 began on 30
July 1996, when the applicant filed an action for annulment against
the decision of the University not to renew his contract, and ended
on 6 December 2001, when the Supreme Administrative Court dismissed
his request for a rectification of its decision. The period under
consideration thus lasted five years and four months before the
Istanbul Administrative Court and the Supreme Administrative Court,
which examined the case twice.
- The
Government maintained that, in the circumstances of the present case,
the length of the administrative proceedings could not be considered
unreasonably long.
- The
applicant maintained his allegations.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that the case was not particularly complex since the
proceedings in question concerned a straightforward employment
dispute.
- As
regards the conduct of the applicant, the Court notes that it does
not appear that he contributed to the prolongation of the
proceedings. The Government have not argued to the contrary.
- As
to the conduct of the domestic authorities, the Court does not find
that there were any excessive delays before the Istanbul
Administrative Court when it dismissed the applicant's case. However,
the Court cannot overlook the fact that it took the Supreme
Administrative Court two years and seven months to render a decision
on the applicant's appeal and a further year and three months to
decide on his request for a rectification of its decision. The
Government did not offer any explanation for this. In the absence of
such an explanation, or of any indication that the applicant was to
blame, the delay must be considered to be attributable to the
domestic courts' handling of the appeal proceedings (see, mutatis
mutandis, Nuri Özkan v. Turkey, no. 50733/99,
§§ 21-22, 9 November 2004).
- The
Court reiterates that employment disputes by their nature call for
expeditious decision, in view of what is at stake for the person
concerned who, through dismissal, loses his means of subsistence
(see Frydlender, cited above, § 45).
- 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. 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, in total, 100,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the amounts.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court notes that some of his claims discern no causal link between
the violation found and the pecuniary damage requested. It further
notes that in support of his remaining claims the applicant has
failed to produce any receipt or other relevant documents. The Court
accordingly dismisses them.
- On
the other hand, the Court considers that the applicant must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Taking
into account the circumstances of the case and having regard to its
case-law, the Court awards the applicant EUR 3,000.
B. Costs and expenses
- The
applicant claimed reimbursement of costs and expenses incurred before
the Court, but did not specify his claim.
- The
Government requested the Court not to make any award under this head.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 500 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 remainder of the application
admissible;
- 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
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into new Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non pecuniary damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
