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SECOND
SECTION
CASE OF OSMAN ERDEN v. TURKEY
(Application
no. 1520/06)
JUDGMENT
STRASBOURG
26
October 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 Osman Erden
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 Stanley Naismith,
Section
Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1520/06) 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 Osman Erden (“the
applicant”), on 30 December 2005. The applicant was represented
by Ms B. Baysal, a lawyer practising in Istanbul. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
18 June 2009 the President of the Second Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Bartın.
- On
13 January 1982 the applicant, a primary school teacher in
Kahramanmaraş at the material time, was discharged from his
duties and on 10 March 1989 he was reinstated.
- The
applicant subsequently requested the Ministry of Education (“the
Ministry”) to reimburse him for the salaries and other
financial rights he had been unfairly deprived of during the period
of inactivity. The Ministry rejected this request.
- The
applicant lodged an action before the Ankara Administrative Court,
requesting this court to quash the Ministry's decision and to order
the payment of his entitlements.
- On
6 November 1991 the Ankara Administrative Court partially granted the
applicant's request and ordered the calculation and payment of the
applicant's salaries and other financial benefits, solely for the
period falling between 15 March 1985 and 10 March 1989. The
administrative court did not order payment of interest on the
relevant amount.
- On
16 April 1992 the Supreme Administrative Court upheld the judgment of
the Ankara Administrative Court.
- Following
the final decision of the Supreme Administrative Court, the applicant
petitioned the Ministry on numerous occasions for the execution of
the judgment of the Ankara Administrative Court and the payment of
his money.
- On
14 January 2001 the applicant applied to the Ankara Administrative
Court, requesting the clarification (tavzih) of its decision
dated 6 November 1991. The applicant asked the court to declare, in
particular, the exact amount that he was entitled to receive from the
Ministry. He explained that without this information, he could not
request the enforcement of the impugned judgment by execution
offices.
- On
20 March 2002 the Ankara Administrative Court rejected the
applicant's request for clarification.
- On
30 June 2005 the applicant was paid 4.35 Turkish liras (TRY),
which corresponded to the salaries and other financial benefits he
would have received during the specified period of his discharge. The
applicant was not paid any default interest on this amount to
compensate the effects of inflation, pursuant to the instructions of
the Ministry of Finance dated 24 May 2005 and the judgment of
the Ankara Administrative Court dated 6 November 1991.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to the information obtained from the Central Bank of Turkey, the
annual rate of inflation in Turkey between the period April 1992,
the date when the administrative court decision became final, and
June 2005, the date when the payment was made to the applicant, was
approximately 55%.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the excessive delay in the
execution of the Ankara Administrative Court's judgment of 6 November
1991 and the resulting financial loss he suffered in view of the high
inflation rates during the relevant period.
A. Admissibility
- The
Government asked the Court to dismiss the applicant's complaints for
failure to exhaust domestic remedies, as required by Article 35
§ 1 of the Convention. The Government maintained that the
applicant had not applied to the domestic authorities to request
payment, nor had he brought execution proceedings. The Government
further maintained that the applicant had failed to comply with the
six-month rule laid down in Article 35 § 1 of the
Convention as he had waited too long to bring his complaint before
the Court.
- As
regards the preliminary objection concerning non exhaustion of
domestic remedies, the Court recalls in the first place 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 remedies to have it executed (see Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004, and Arat and Others v.
Turkey, nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04,
42908/04, 42909/04 and 42910/04, § 19, 13 January 2009). In such
cases, the defendant State authority must be duly notified of
the judgment and is thus well placed to take all necessary
initiatives to comply with it or to transmit it to another competent
State authority responsible for execution. However, a successful
litigant may be required to undertake certain procedural steps in
order to recover the judgment debt, be it during a voluntary
execution of a judgment by the State or during its enforcement by
compulsory means (see Shvedov v. Russia, no. 69306/01,
§§ 29–37, 20 October 2005). In this
connection, the Court notes from the documents in the case file that
contrary to the Government's allegations, the applicant in the
instant case made a number of appeals to the authorities over the
years to obtain his money, virtually all of which were left
unanswered until the payment was finally made in June 2005. Moreover,
the applicant sought a decision of clarification from the Ankara
Administrative Court regarding the amount he was due with the aim of
bringing execution proceedings against the Ministry for that amount.
The rejection of his request by the administrative court, however,
removed any possibility of compulsory enforcement of the judgment in
question. In these circumstances, the Court considers that for the
purposes of Article 35 § 1 of the Convention, the applicant has
exhausted domestic remedies. The Government's preliminary objection
must therefore be rejected.
- As
for the Government's second objection, regarding the applicant's
failure to comply with the six-month rule laid down in Article 35 §
1 of the Convention, the Court considers that the six-month period
runs from the date of the payment, since the applicant's complaint
concerns solely the national authorities' delay in enforcing the
domestic court judgment and the damage he sustained as a result.
Bearing in mind that the payment was made on 30 June 2005 and the
instant application was lodged with the Court on 30 December
2005, the Court finds that the applicant has complied with the
six-month rule under Article 35 § 1 of the Convention and,
therefore, rejects the Government's objection (see Akkuş v.
Turkey, 9 July 1997, § 21, Reports of Judgments and
Decisions 1997 IV, and Otto v. Germany (dec.),
no. 21425/06, 10 November 2009).
- The
Court notes that this application 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
1. Alleged violation of Article 6 § 1 of the
Convention as to the non enforcement of the administrative court
judgment
- The
applicant complained under Article 6 § 1 of the Convention of
the State authorities' failure to execute the judgment of 6 November
1991, which became final on 16 April 1992.
- The
Court reiterates that the right to a fair hearing includes the right
to have a binding judicial decision enforced. 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. The execution of a judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6 (Hornsby v. Greece, 19 March
1997, § 40, Reports 1997-II).
- The
Court considers that by failing for over thirteen years to ensure the
execution of the binding judgment of 6 November 1991, the Turkish
authorities deprived the provisions of Article 6 § 1 of the
Convention of all useful effect (see, among many others, Burdov
v. Russia (no. 2), no. 33509/04,
§§ 62-88, ECHR 2009 ...).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. Alleged violation of Article 1 of Protocol No. 1
- The
applicant submitted under Article 1 of Protocol No. 1 that the
excessive delay in the execution of the administrative court judgment
had also inflicted a great financial loss on him, particularly
because the payment he received was not subject to default interest
despite the high inflation rate in Turkey.
- The
Court observes that by a judgment dated 6 November 1991 the Ankara
Administrative Court ordered the Ministry to pay the applicant his
past entitlements and this judgment became final with the decision of
the Supreme Administrative Court dated 16 April 1992. It is further
noted that this amount, which was not subject to default interest,
was not paid to the applicant until 30 June 2005.
- The
Court recalls that it has found a violation of Article 1 of Protocol
No. 1 in a number of cases that raise similar issues to those arising
here (see, mutatis mutandis, Ertuğrul Kılıç
v. Turkey, no. 38667/02, 12 December 2006, and Göktaş
v. Turkey, no. 66446/01, § 41, 29 November 2007).
- Having
examined the facts and arguments submitted by the Government, the
Court considers that there is no reason to depart from the previous
cases.
- The
Court considers that, as the authorities delayed executing the
administrative court judgment and as no default interest was applied
to the amount paid to the applicant, the applicant has had to bear an
individual and excessive burden that has upset the fair balance that
should be maintained between the demands of the general interest and
the protection of the right to the peaceful enjoyment of possessions.
- There
has therefore been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
- The
applicant claimed TRY 121,360 (approximately EUR 55,000 at the
relevant time) in respect of pecuniary damage for the salaries and
other benefits he had been deprived of for the entire period of his
inactivity between 13 January 1982 and 10 March 1989. Alternatively,
he claimed TRY 78,447 (approximately EUR 35,600 at the relevant
time), which reflected his loss only between 15 March 1985 and 10
March 1989, which was the period set by the administrative court for
his compensation. He also claimed EUR 10,000 for non pecuniary
damage. He did not state a specific amount for the costs and expenses
he claimed but asked the Court to make an award under this head in
the light of the Turkish Bar Association's scale of fees.
- The
Government contested these claims as being unsubstantiated and
fictitious.
- Having
regard to the circumstances of the case and the relevant economic
data, and making its assessment on an equitable basis, the Court
awards the applicant a global sum of EUR 20,000 in respect of
pecuniary and non-pecuniary damage.
- As
for costs and expenses, 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 are reasonable as to quantum. In the present
case, the Court observes that the applicant did no more than refer to
the Turkish Bar Association's scale of fees. He failed to quantify
his costs and expenses and to submit any supporting documents in
support of his claim. The Court therefore makes no award under this
head.
B. 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- 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 20,000 (twenty
thousand euros), plus any tax that may be chargeable, in respect of
pecuniary and non pecuniary damage, to be converted into 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 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
