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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> ARAT AND OTHERS v. TURKEY - 42894/04 [2009] ECHR 60 (13 January 2009)
    URL: http://www.bailii.org/eu/cases/ECHR/2009/60.html
    Cite as: [2009] ECHR 60

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    SECOND SECTION







    CASE OF ARAT AND OTHERS v. TURKEY


    (Applications nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04, 42908/04, 42909/04 and 42910/04)












    JUDGMENT



    STRASBOURG


    13 January 2009



    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 Arat 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 9 December 2008,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in eight applications (nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04, 42908/04, 42909/04 and 42910/04) 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 eight Turkish nationals, Messrs Mehmet Arat, Hacı Atsız, Mehmet Atsız (son of Hakim), Edip Çelik, Ramazan Alaca, Erdal Güneş, Mehmet Atsız and Mehmet Can (“the applicants”), on 6 September 2004.

  2. The applicants were represented by Mr Fırat Üger, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

  3. The applicants alleged that the non-enforcement of a number of court decisions in their favour had given rise to a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

  4. On 21 January 2008 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).

    5. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  5. The applicants were born in 1975, 1970, 1972, 1967, 1963, 1972, 1961 and 1972 respectively, and live in the town of Şölen.

  6. The applicants were all employed as manual workers by the Şölen Town Council (hereafter “the Town Council”) until their contracts of employment were terminated by the Town Council on 29 April 1999.

  7. On various dates in 1999 the applicants brought proceedings before the Ergani Civil Court of First Instance against the Town Council and claimed their unpaid salaries and other pecuniary rights to which they were entitled under the applicable legislation.

  8. The applicants' claims were partly accepted by the Ergani Civil Court in its decisions adopted on 3 November 1999 and 30 December 1999.

  9. Between December 1999 and March 2000 the applicants initiated enforcement proceedings against the Town Council and sought to obtain the sums awarded to them by the Ergani Civil Court together with statutory interest.

  10. The sums claimed by the applicants were as follows:


    11. Application no.

    Applicant

    Amount in Turkish liras

    Approximate amount in Euros

    42894/04

    Mehmet Arat

    791,793,180

    1,440

    42904/04

    Hacı Atsız

    1,481,705,734

    2,700

    42905/04

    Mehmet Atsız (son of Hakim)

    3,670,205,743

    6,680

    42906/04

    Edip Çelik

    3,299,888,955

    6,000

    42907/04

    Ramazan Alaca

    3,409,954,582

    6,200

    42908/04

    Erdal Güneş

    976,729,112

    1,780

    42909/04

    Mehmet Atsız

    4,918,063,504

    8,950

    42910/04

    Mehmet Can

    2,792,467,421

    5,080


  11. In the course of the enforcement proceedings, the applicants unsuccessfully attempted to recover their monies from the Town Council's bank accounts at the State owned Ziraat Bank. The bank refused to make the payments on the ground that the monies deposited there by the Town Council had been allocated to a special fund earmarked for public services. Following this, the Town Council transferred all their monetary assets to the special fund to circumvent the Ergani Civil Court's decisions.

  12. At the time of the adoption of the present judgment the applicants' attempts at recovering their monies were still continuing.

    13. II.  RELEVANT DOMESTIC LAW AND PRACTICE

  13. For a summary of the relevant domestic law and practice, see Demirhan and Others v. Turkey, nos. 28152/02, 28155/02 and 28156/02, §§ 16-18, 5 June 2007.

    14. THE LAW

  14. Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join them.

    15. I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

  15. The applicants complained that the Town Council's refusal to comply with the Ergani Civil Court's decisions had deprived them of their property within the meaning of Article 1 of Protocol No. 1 to the Convention which, in so far as relevant, reads as follows:

    16. “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.”

  16. The Government contested that argument and submitted that the reason behind the non-payment of the applicants' monies had been the financial problems faced by the Town Council. As the Ergani Civil Court's decisions remained valid, the applicants had not been deprived of their property.

    17. A.  Admissibility

  17. The Government argued that the applicants had not complied with the requirement to exhaust domestic remedies because the enforcement proceedings instigated by them to recover their monies were still continuing. The Government further submitted that the applicants had failed to raise their Convention complaints, even in substance, before the domestic courts.

  18. The applicants maintained that they had complied with the requirement to exhaust domestic remedies and that their efforts at the national level were still continuing. The Town Council was doing everything in its power to circumvent the decisions of the domestic courts.

  19. The Court reiterates 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 Demirhan and Others, cited above, § 34; see also Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). In any event, the remedies which the applicants have been making use of since December 1999 have not been capable of offering them any prospect of success in forcing the national authorities to pay the due amounts.

  20. The Court consequently dismisses the Government's objection regarding the issue of exhaustion of domestic remedies.

  21. 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.

    22. B.  Merits

  22. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 59).

  23. The Ergani Civil Court's decisions adopted in 1999 provided the applicants with enforceable claims and, indeed, enforcement proceedings were instituted by the applicants in 1999 and 2000. It follows that the applicants' inability to have the decisions 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 to the Convention.

  24. By failing to comply with the judgments of the Ergani Civil Court, the national authorities prevented the applicants from receiving the monies to which they were entitled. The Government have not advanced any 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).

  25. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all the applicants.

    26. II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

  26. The applicants complained that the non-enforcement of the decisions of the Ergani Civil Court had also given rise to a violation of Article 6 of the Convention, the relevant parts of which provide as follows:

    27. “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

  27. The Government contested that argument.

  28. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

  29. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his 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 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 a court and the 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, § 40).

  30. It is not open to a State authority to cite lack of funds as an excuse for not honouring a 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 under 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 alleged financial difficulties experienced by the Town Council.

  31. However, as pointed out above, the Ergani Civil Court's decisions adopted in 1999 remain wholly unenforced.

  32. In view of the above, the Court considers that, by failing for nine years to take the necessary measures to comply with the final judicial decisions in the present case, the authorities deprived the provisions of Article 6 § 1 of all useful effect.

  33. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of all of the applicants.

    34. III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  34. Article 41 of the Convention provides:

    35. “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

  35. In respect of pecuniary damage the applicants claimed the amounts below. These amounts were converted to euros from the national currency of the respondent State on the basis of the currency exchange rate of 3 July 2008, that is the date of the applicants' submissions of their claims to the Court.

  36. According to the applicants, these sums included the amounts awarded to them by the Ergani Civil Court, statutory interest, the fees of their lawyers who represented them before the domestic authorities and other expenses incurred in the domestic proceedings:

    37. Mehmet Arat: 2,322 euros (EUR)

    Hacı Atsız: EUR 6,164

    Mehmet Atsız (son of Hakim): EUR 13,589

    Edip Çelik: EUR 11,161

    Ramazan Alaca: EUR 10,474

    Erdal Güneş: EUR 2,943

    Mehmet Atsız: EUR 9,024

    Mehmet Can: EUR 5,714

  37. Each applicant also claimed the sum of EUR 50,000 in respect of non-pecuniary damage.

  38. The Government contested the sums claimed by the applicants in respect of pecuniary damage, alleging that the claims were not supported with any evidence and were based on speculative calculations. They also submitted that the claims made in respect of non-pecuniary damage were excessive and baseless.

  39. The Court considers that, in accordance with its finding of a violation of Article 1 of Protocol No. 1 (see paragraph 25 above), the applicants are entitled to pecuniary damages. Bearing in mind that the applicants' complaint related to the non-payment of the monies owed to them by the Town Council, the Court considers that the payment by the Government of these outstanding amounts, together with interest applicable under domestic law for late payment, would satisfy the applicants' claims for pecuniary damage.

  40. Given its finding of a violation of Article 6 § 1 of the Convention on account of the significant period of time during which the domestic decisions remained unenforced (see paragraph 33 above), the Court considers that the applicants' prejudice 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 (see Demirhan and Others, cited above, § 54; Aygün and Others v. Turkey, no. 5325/02, 5353/02 and 27608/02, § 45, 20 November 2007; Çiçek and Öztemel and Others v. Turkey, nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, § 54, 3 May 2007), the Court awards each applicant EUR 5,000 in respect of non-pecuniary damage.

    41. B.  Costs and expenses

  41. Each of the eight applicants also claimed EUR 2,934 for the costs and expenses incurred before the Court. In support of their claims the applicants submitted fee agreements signed by them and their lawyers.

  42. The Government contested the claims.

  43. 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 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 each applicant the sum of EUR 500 covering costs under all heads.

    44. C.  Default interest

  44. 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.

    45. FOR THESE REASONS, THE COURT UNANIMOUSLY

  45. Decides to join the applications;


  46. Declares the applications admissible;


    47. 3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;


  47. Holds that there has been a violation of Article 6 § 1 of the Convention;


  48. Holds

    49. (a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sums awarded to them by the Ergani Civil Court together with statutory interest applicable under domestic law for late payment. Within the same period the respondent State is also to pay each applicant the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

    (i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and

    (ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

    (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;


  49. Dismisses the remainder of the applicants' claim for just satisfaction.

    50. Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


    Sally Dollé Françoise Tulkens
    Registrar President


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URL: http://www.bailii.org/eu/cases/ECHR/2009/60.html