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SECOND
SECTION
CASE OF YÜCEL DOĞAN v. TURKEY
(Application
no. 24647/04)
JUDGMENT
STRASBOURG
6
October 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 Yücel Doğan 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 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24647/04) 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 Yücel
Doğan (“the applicant”), on 8 June 2004.
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
11 March 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in İzmir.
- On
7 June 1997 the applicant passed an exam for the post of a private
security guard and was subsequently employed to work for Etibank, a
State-owned company. However, the exam results were subsequently
annulled on the basis of a report prepared by inspectors who had
found a number of wrongdoings in the conduct of the examination. The
applicant's contract of employment was terminated.
- On
27 November 1997 the applicant brought an action before the
7th Chamber of the Ankara Administrative Court,
challenging the annulment of the exam results. He also asked to be
reassigned to his post. The Ankara Administrative Court decided on 9
December 1997 that it had no jurisdiction to examine the case and
forwarded the case file to the Konya Administrative Court.
- On
5 March 1998 the Konya court decided that it also did not have
jurisdiction to examine the case and sent the file to the Supreme
Administrative Court which decided, on 15 June 1998, that the Ankara
Administrative Court had jurisdiction.
- On
14 April 1999 the 7th Chamber of the Ankara Administrative
Court decided in favour of the applicant and he was reinstated in his
previous post. The court found that the annulment of the exam should
not have affected the successful candidates who, by having met the
necessary criteria, had passed the exam properly. The bank appealed
against the decision on 28 June 1999.
- On
15 November 2001 the Supreme Administrative Court quashed the
decision. The court found that the report drawn up by the inspectors
contained sufficient reasons for the annulment of the exam. The
Supreme Administrative Court attached weight to the gravity of the
wrongdoings pointed out in that report and concluded that the
employment of personnel through such an exam would not be fair. On 26
June 2002 the applicant was dismissed from his job once more.
- On
18 September 2002 the 7th Chamber of the Ankara
Administrative Court followed the Supreme Administrative Court's
decision and rejected the applicant's request. On 3 December 2002 the
applicant appealed.
- On
29 December 2003 the Supreme Administrative Court upheld the decision
of 18 September 2002. The final decision was communicated to the
applicant on 10 May 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
- 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.
- The
period to be taken into consideration began on 27 November 1997
and ended on 29 December 2003. It thus lasted over six years for two
levels of jurisdiction.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies, as required by Article 35 § 1 of the Convention, since
he had failed to raise the substance of his complaint before the
national courts.
16. The Court has
already examined and rejected similar objections of the Government as
regards the alleged failure to exhaust domestic remedies (see, in
particular, Karakullukçu
v. Turkey,
no. 49275/99, §§ 27 28, 22 November 2005).
The Court finds no particular circumstances in the instant case,
which would require it to depart from its findings in the
above-mentioned application. It therefore rejects the Government's
objection.
- 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
Government submitted that the length of the proceedings had not
exceeded the reasonable time requirement. They argued that the
applicant's case had been complex.
- 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 reiterates that special diligence
is necessary in employment disputes (Ruotolo v. Italy, 27
February 1992, § 17, Series A no. 230 D).
- In
the present case the Court observes, in particular, that the first
appeal lodged by the applicant was not determined by the Supreme
Administrative Court for a period of almost two and a half years (see
paragraphs 8 9 above).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (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
application. 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 6 of the Convention, the applicant further complained that
the dissenting opinion of one of the judges had not been adequately
reasoned.
- The
Court has examined this complaint. However, having regard to all the
material in its possession, and in so far as the complaint falls
within its competence, the Court finds that it does not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
