BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF KEMAN v. TURKEY
(Application
no. 68446/01)
JUDGMENT
STRASBOURG
20
November 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 Keman v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 68446/01) 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 Gürcan
Keman (“the applicant”), on 13 November 2000.
- The
applicant was represented by Mr S. Özay, a lawyer practising in
Izmir. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
26 April 2005 the Court
decided to give notice of the application 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 1964 and lives in Manisa, Turkey.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1991 the applicant sat a competition for admission to the civil
service. Following his success in the competition, the General
Directorate of Higher Education Credit and Hostels Institution (“the
General Directorate”) (T.C. Yüksek Öğrenim ve
Yurtlar Kurumu Genel Müdürlüğü)
conducted a pre-employment background investigation. It found that
the applicant had not mentioned his criminal record in his
application form.
- On
14 January 1992 the General Directorate decided that the applicant
was not eligible for appointment to a vacant post on account of the
negative findings in the pre employment investigation. In
particular, in 1980 the applicant had been convicted of issuing
threats against one of his teachers and had been sentenced to four
months and twenty days' imprisonment, which had then been converted
into a fine.
1. First set of proceedings
- On
7 February 1992 the applicant brought an action in the Ankara
Administrative Court requesting the annulment of the General
Directorate's decision of 14 January 1992.
- On
26 October 1993 the Ankara Administrative Court dismissed the action.
The applicant appealed.
- On
18 December 1995 the Supreme Administrative Court quashed the Ankara
Administrative Court's judgment holding that the applicant was
suitable for employment.
- On
22 December 1998 the Supreme Administrative Court dismissed the
General Directorate's request for rectification of its decision.
- On
10 March 1999 the Ankara Administrative Court abided by the Supreme
Administrative Court's decision. It found that the applicant had
fulfilled all the requirements of the vacant post in question as
prescribed under Law no. 657. It therefore ruled that the applicant
was eligible to become a civil servant.
- On
8 June 1999 the General Directorate appealed.
- On
31 October 2001 the Supreme Administrative Court dismissed the
appeal.
- On
30 May 2002 the Supreme Administrative Court dismissed the request
for rectification of the decision.
2. Second set of proceedings
- On
an unspecified date, the applicant brought a new action in the Ankara
Administrative Court against the General Directorate requesting
compensation for pecuniary and non-pecuniary damage which he
allegedly had suffered as a result of the decision dated 14 January
1992.
- On
28 December 1999 the Ankara Administrative Court awarded the
applicant a certain amount of compensation for pecuniary damage but
rejected his request for non-pecuniary damage. The court further
decided that legal costs should be shared by the parties, given that
it partially acceded to the applicant's claims for compensation.
- On
26 April 2000 the General Directorate appealed the Supreme
Administrative Court judgment, arguing that the applicant had not
suffered any damage and that therefore the legal costs should be
borne by him.
- On
30 May 2002 the Supreme Administrative Court dismissed the appeal,
holding that the Ankara Administrative Court's ruling was in
conformity with law and procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first set of 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 7 February 1992 and
ended on 30 May 2002. It thus lasted approximately ten years and
three months before two levels of jurisdiction.
A. Admissibility
- 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
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 on this ground.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 of the Convention and
Article 1 of Protocol No.1 that the awards made by the Ankara
Administrative Court in respect of compensation and his lawyer's
costs and expenses were insufficient and disproportionate. He finally
alleged under Article 14 of the Convention that he had not been
appointed to a post in the civil service on account of his political
opinions.
- The
Court finds nothing in the case file which might disclose any
appearance of a violation of these provisions. It follows that this
part of the application is manifestly-ill founded and must be
rejected, 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.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the amount claimed was excessive and should
not lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non pecuniary damage. Accordingly, it awards the applicant EUR
6,500 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the Court.
- The
Government contended that the applicant's claim was unsubstantiated.
- 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 above criteria
and the applicant's failure to substantiate his claim, the Court
makes no award under this heading.
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 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;
- 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 6,500 (six
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into new Turkish liras at the rate applicable at the
date of settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
