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THIRD
SECTION
CASE OF HASAN ERKAN v. TURKEY
(Application
no. 29840/03)
JUDGMENT
STRASBOURG
14 June
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 Hasan Erkan 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 David Thór Björgvinsson,
Mrs I.
Ziemele, judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29840/03) 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 Hasan Erkan, on 15 August 2003.
- The
applicant was represented before the Court by Ms Arzu Becerik, a
lawyer practising in Istanbul. The Turkish Government (“the
Government”) did not appoint an agent for the purpose of the
proceedings before the Court.
- On
24 March 2005 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1927 and lives in Yalova. He worked as a
teacher and retired on 3 September 1973. On 31 October 1991 he
completed a pre-undergraduate (önlisans) course at
Anadolu University.
- On
19 February 1992 the applicant applied to the Directorate of
Education in Istanbul (Milli Eğitim Müdürlüğü)
and requested to be reassigned to a post as a teacher. Since he had
obtained a higher education diploma, he expected to be promoted to a
higher grade for each year of work as a teacher, in accordance with
Article 36 of the Law on Civil Servants (Law No. 657). This, in
turn, would entitle him to a higher pension.
- On
5 May 1992 the Ministry of Education appointed the
applicant to the post of primary school teacher in Kartal district of
Istanbul. This decision was sent to the Kartal District Governor
(Kaymakamlık) on 26 May 1992 but not communicated to the
applicant.
- On
7 August 1992 the applicant once again applied to the
Istanbul Directorate of Education and found out about the
decision of 5 May 1992. On 10 August 1992 he started working as a
teacher.
- On
1 October 1992 the applicant's contract was terminated by the
Ministry of Education on the ground that when he started to work he
was over the age of 65, i.e. the compulsory retirement age in Turkey.
Furthermore, the days he worked from 10 August 1992 until 1 October
1992 were not added to the total period of his service. As a result,
the applicant could not advance to a higher grade.
- On
17 January 1993 the applicant filed an action before the Ankara
Administrative Court and asked for the days he worked in 1992 to be
taken into account when calculating the total period of his service.
He also stated that the reason for him to start working after he was
over the age of sixty-five had been the failure of the authorities to
communicate him the decision concerning his assignment.
- On
22 December 1994 the Ankara Administrative Court dismissed his
request. The applicant appealed on 5 May 1995 but did not pay the
necessary appeal fees until 3 August 1995.
- On
27 April 1998 the Council of State quashed the judgment of the Ankara
Administrative Court. In the opinion of the Council of State, the
applicant should have been considered as a civil servant on the day
of the appointment and not on the day of his actually taking up his
duties.
- On
7 October 1999 the Administrative Court rendered its decision in
which it insisted in its decision of 22 December 1994. The
Administrative Court considered that the applicant could only be
considered as a civil servant on the day he actually started to work,
and not on the day of his appointment. It further stated that
awarding the statutory rights (özlük hakları)
to civil servants before they begin their service had no legal basis
in domestic law. In the light of the aforementioned considerations,
the court ruled that the applicant did not have the right to advance
to a higher grade. The applicant appealed against this decision on 19
January 2000 but did not pay the necessary court fees until 23 May
2000.
- On
15 November 2002 the Joint Council of the Council of State's
Administrative Chambers (Danıştay İdari Dava
Daireleri Genel Kurulu) upheld the first-instance court's
judgment. This decision was served on the applicant on
17 February 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down 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...”.
- The
Government contested that argument and submitted that in the course
of the proceedings, the Administrative Court and the Council of State
had each rendered two decisions. The case had been a complex one and
numerous hearings were held in the course of these proceedings. There
were no delays which could be attributable to the national
authorities.
A. Admissibility
- The
Court notes that the 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 observes that the proceedings began on 17 January 1993 when the
applicant filed an action before the Ankara Administrative Court, and
ended on 15 November 2002 when the Joint Council of the Council of
State's Administrative Chambers upheld the first-instance court's
judgment. The proceedings thus lasted nine years and ten months
during which four decisions have been rendered. In this connection
the Court would point out that it took the Council of State almost
two years and nine months to render its decision. Furthermore, the
Joint Council of the Council of State's Administrative Chambers did
not decide on the appeal for a period of almost two and a half years.
These delays contributed substantially to the total length of the
proceedings.
- 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 has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- 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 case.
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 1,300 euros (EUR) in respect of pecuniary and EUR
15,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects the claim in
respect of pecuniary damage. On the other hand, it awards the
applicant EUR 5,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,150 for the fees of his legal
representative and the costs and expenses associated with the
bringing of his case before the Court.
- The
Government contested the claim.
- 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 1,000 covering costs under all
heads.
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 in accordance with
Article 44 § 2 of the Convention, EUR 5,500 (five
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 1,000 (one thousand euros) in respect of his costs and expenses,
plus any tax that may be chargeable; to be converted into new 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 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 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
