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SECOND
SECTION
CASE OF KÖKSAL AND DURDU v. TURKEY
(Applications
nos. 27080/08 and 40982/08)
JUDGMENT
STRASBOURG
15 June
2010
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 Köksal and
Durdu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 25 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
cases originated in two applications (nos. 27080/08 and 40982/08)
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 two Turkish nationals,
Mr Metin Köksal and Mr Servet Durdu (“the
applicants”), on 29 May and 15 August 2008, respectively.
The first applicant, Mr Köksal, was represented by Mr H.
Çakıroğlu, a lawyer practising in Samsun. The second
applicant, Mr Durdu, was represented by Mr M. Bayat, a lawyer
practising in Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- On
13 May 2009 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants were born in 1973 and 1965, respectively, and live in
Samsun and Ankara.
A. Application no. 27080/08
- On
17 October 2001 the applicant was discharged from his civil service
post following his previous criminal conviction by a martial law
court. The conviction had been finalised by the Military Court of
Cassation's decision of 11 November 1997.
- On
4 January 2002 the applicant brought an action before the Samsun
Administrative Court to annul the discharge order.
- On
5 June 2002 the Samsun Administrative Court rejected the applicant's
request.
- On
7 February 2005 the Supreme Administrative Court upheld the judgment
of the Samsun Administrative Court. The written opinions of the
public prosecutor and of the judge rapporteur (“tetkik
hakimi”) concerning his appeal request were not
communicated to the applicant.
- On
31 December 2007 the Supreme Administrative Court dismissed the
applicant's request for rectification of its previous decision.
B. Application no. 40982/08
- On
11 January 2002 the applicant was discharged from his civil service
post after a disciplinary decision. Criminal proceedings were also
commenced against the applicant on the same grounds as those which
had led to his discharge.
- On
15 March 2002 the applicant brought an action before the Ankara
Administrative Court to annul the discharge order.
- On
25 June 2002 the Ankara Assize Court acquitted the applicant of the
offences with which he had been charged. On 22 March 2004 the Court
of Cassation upheld the applicant's acquittal.
- In
the meantime, on 31 March 2003 the Ankara Administrative Court
refused the applicant's request to annul the discharge order. Relying
on Section 131 of the Law on Civil Servants (Law no. 657), the
administrative court held that the applicant's acquittal of the
criminal charges did not absolve him from the disciplinary sanction.
- On
26 April 2005 the Supreme Administrative Court upheld the judgment of
the Ankara Administrative Court. The written opinions of the public
prosecutor and of the judge rapporteur concerning his appeal request
were not communicated to the applicant.
- On
23 January 2008 the Supreme Administrative Court dismissed the
applicant's rectification request. The final decision was served on
the applicant on 4 March 2008.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in the case of
Meral v. Turkey (no. 33446/02, §§ 22-26, 27 November
2007).
THE LAW
- Given
the similarity of the applications, both as regards fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants both complained under Article 6 § 1 of the Convention
of the non-communication of the written opinions submitted by the
public prosecutors to the Supreme Administrative Court concerning
their appeal requests, which had denied them the opportunity to reply
and had thus infringed the principle of equality of arms. The
applicants also maintained under the same provision that they had
been denied a trial within a reasonable time.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
they are not inadmissible on any other grounds. They must therefore
be declared admissible.
A. Non-communication of the public prosecutor's written
opinion
- The
Government contended that, unlike in criminal proceedings, the public
prosecutor in administrative proceedings was not a party to the case
and his or her opinion had no influence on the decision of the
administrative court. The Government also argued that the principle
of equality of arms had not been infringed in the instant cases as
the applicants had had the option of examining their respective case
files, and thus the public prosecutors' written opinions, prior to
the delivery of the judgments.
- The
Court observes that it has already examined and dismissed similar
preliminary objections by the Government in previous cases and found
a violation of Article 6 § 1 of the Convention (see Meral,
cited above, §§ 32 39, and Miran v.
Turkey, no. 43980/04, §§ 9-18, 21 April 2009). It
considers that the Government have not put forward any fact or
argument in the instant cases which would require it to depart from
its previous findings.
There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of the non-communication of the written
opinions of the public prosecutors to the applicants.
B. Length of administrative proceedings
- The
Court notes that the proceedings in relation to application
no. 27080/08 began on 4 January 2002 and ended on 31 December
2007. They thus lasted over five years and eleven months before two
levels of jurisdiction, which examined the case three times. The
proceedings in application no. 40982/08 commenced on 15 March 2002
and came to an end on 23 January 2008. They thus lasted over five
years and ten months before two levels of jurisdiction, which
examined the case three times.
- The
Government argued that the period during which the applicants'
rectification requests were examined by the Supreme Administrative
Court could not be taken into consideration in the assessment of the
length of the proceedings as the rectification of judgments was an
extraordinary legal remedy and not a part of the administrative
proceedings. They also maintained that there was no delay in either
of the proceedings which could be attributed to the authorities.
- The
Court reiterates that the present cases concern civil proceedings,
and that the remedy of rectification of judgments in Turkey within
this context constitutes an effective domestic remedy within the
meaning of generally recognised international law principles (see
Molin Inşaat v. Turkey, no. 23762/94, Commission
decision of 7 September 1995, and Latif Fuat Öztürk v.
Turkey, no. 54673/00, § 29, 2 February 2006). The Court,
therefore, cannot accept the Government's argument that the
rectification procedure, which the applicants availed themselves of
in the instant cases, was not a part of the administrative
proceedings in question.
- The
Court further notes that it has frequently found violations of
Article 6 § 1 of the Convention in applications raising
issues similar to the ones 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, in both
applications, the cases were pending before the Supreme
Administrative Court for almost five years, which delay 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 both proceedings was excessive and failed to meet
the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the Convention
in respect of both of the administrative proceedings in question.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Alleged violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The
applicants argued under Article 6 § 1 of the Convention that the
written opinions submitted by the judge rapporteurs to the Supreme
Administrative Court had not been communicated to them. They further
claimed under Article 1 of Protocol No. 1 that they had been deprived
of their future earnings and other financial rights on account of
their unfair dismissals from the civil service.
- As
regards the complaint concerning the non-communication of the written
opinion of the judge rapporteur, the Court notes that it has already
examined and rejected this complaint in the case of Meral
(cited above, §§ 40 43). The Court finds no
particular circumstances in the instant cases which would require it
to depart from its findings in the Meral case.
It
follows that this part of the applications should be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
- As
for the complaint raised under Article 1 of Protocol No. 1, the Court
considers that the applicants had no “legitimate expectation”
of receiving the future income which they had claimed (see Ouzounis
and Others v. Greece, no. 49144/99, §§ 24 and 25, 18
April 2002). Therefore they have not shown that they had a property
right requiring protection under this provision.
It
follows that this part of the applications should be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
B. Alleged violation of Articles 6 § 1 and 13 of
the Convention
- The
first applicant, Mr Köksal, complained under Article 6 § 1
of the Convention that the criminal conviction of the martial law
court had been erroneous and unfair. He further contended under
Article 13 of the Convention that he had not had an effective remedy
in domestic law, without further substantiation.
- As
regards the complaint under Article 6 § 1 of the Convention, the
Court notes that the conviction ordered by the martial law court had
been upheld on 11 November 1997 by the decision of the Military Court
of Cassation. The applicant, however, introduced his application to
the Court on 29 May 2008, more than six months later.
It
follows that this complaint has been introduced out of time and must
be rejected under Article 35 §§ 1 and 4 of the Convention.
- As
regards the complaint under Article 13 of the Convention, the Court
finds that this unarguable complaint does not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols in the light of all the material in its possession,
and in so far as the matters complained of are within its competence.
It
follows that this part of application no. 27080/08 should be rejected
as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
C. Alleged violation of Articles 6 § 2 and 7 of
the Convention
- The
second applicant, Mr Durdu, complained that the failure of the
administrative courts to annul the disciplinary sanction he had
received, despite his acquittal by the criminal courts of the charges
in relation to the same events, had violated Articles 6 § 2 and
7 of the Convention.
- The
Court notes that the applicant was not charged with a “criminal
offence” in the proceedings before the administrative courts
within the meaning of Article 6 § 2 of the Convention and that
his discharge was brought about by a disciplinary sanction, which did
not constitute “punishment” under Article 7 of the
Convention (see, mutatis mutandis, Korkmaz and Others v.
Turkey (dec.), nos. 44058/04, 19807/05 and 26384/05, 23 September
2008).
It
follows that these complaints in application no. 40982/08 are
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
first applicant claimed 23,000 euros (EUR) and EUR 20,000 in
respect of pecuniary and non-pecuniary damage, respectively. The
second applicant claimed EUR 50,000 and EUR 200,000 for pecuniary and
non pecuniary damage, respectively.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damages alleged; it therefore rejects these claims.
However, deciding on an equitable basis, it awards the applicants
EUR 3,000 each in respect of non-pecuniary damage.
B. Costs and expenses
- The
first applicant claimed EUR 2,975 for the costs and expenses incurred
before the Court, but did not submit any documents in substantiation.
The second applicant claimed EUR 2,000 for the costs and expenses
incurred before the domestic courts and the Court. He also claimed
EUR 2,500 in legal fees in connection with the presentation of
the case before the Court. The applicant did not submit any receipts
or other vouchers in respect of his costs and expenses, but only
submitted documentation indicating the time spent by his legal
representative on the application.
- The
Government contested these claims.
- 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, the Court rejects the
first applicant's claims under this head in the absence of any
documentation. However, regard being had to the documents in its
possession and the above criteria, it considers it reasonable to
award the second applicant the sum of EUR 1,000 for his costs
and expenses.
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
- Decides to join the applications;
- Declares the complaints under Article 6 § 1
of the Convention concerning the non-communication to the applicants
of the public prosecutors' written opinions and the excessive length
of the administrative proceedings admissible and the remainder of the
applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-communication to
the applicants of the public prosecutors' written opinions and the
excessive length of the administrative proceedings;
- Holds
(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
following amounts to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) to each applicant in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
1,000 (one thousand euros) to the second applicant (Mr Servet
Durdu) in respect of costs and expenses, plus any tax that may be
chargeable to him;
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 15 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
