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SECOND
SECTION
CASE OF KÖSEOĞLU v. TURKEY
(Application
no. 73283/01)
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 Köseoğlu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs F.
Elens-Passos, Deputy 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. 73283/01) 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 Oğuz
Atakan Köseoğlu (“the applicant”), on 1
February 2001.
- The
applicant was represented by Ms A. Tekeli, 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 May 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 1951 and lives in Izmir.
- The
facts of the case, as presented by the parties, may be summarised as
follows.
- Until
1987 the applicant worked as a primary school teacher in Izmir.
- On
30 March 1983 he was taken into police custody on suspicion of
membership of an illegal organisation.
- From
30 March 1983 to 30 September 1987, he was suspended from his post on
account of the criminal proceedings against him.
- In
1984 the Diyarbakır Martial Court convicted the applicant under
Article 141 of the Criminal Code and sentenced him to five years'
imprisonment.
- By
a decision of 30 September 1987, the Ministry of National Education
dismissed the applicant from his employment. It reasoned that the
applicant was no longer eligible for the civil service since he
failed to fulfil the requirements of the post as prescribed by
Article 48 § A-5 of Law no. 657.
- On
12 April 1991 Article 141 of the Criminal Code was repealed by
Law no. 3713 (the Anti-Terror Law).
- On
4 December 1991 the Izmir Assize Court ordered the removal of the
applicant's conviction under Article 141 of the Criminal Code.
- On
15 September 1992 the applicant filed a petition with the
administrative authorities and requested his reinstatement to his
previous post.
- On
31 December 1993 the applicant was reinstated to the post of primary
school teacher at a primary school in Konak.
- On
8 February 1994 the applicant filed a petition with the principal of
the primary school. He requested to be given the rights and earnings
which he was denied during his suspension and dismissal periods.
- The
principal of the primary school transmitted the applicant's petition
to the Konak District National Education Directorate.
- By
a decision dated 11 April 1994, the Ministry of National Education
dismissed the applicant's request.
- On
9 May 1994 the Konak District National Education Directorate informed
the applicant about the Ministry's decision.
- On
30 May 1994 the applicant filed an action with the Izmir
Administrative Court, seeking compensation for the damage he had
suffered as a result of his allegedly unlawful suspension and
dismissal. He further requested to be granted the rights and salaries
of which he had been deprived during those periods.
- On
20 December 1996 the Izmir Administrative Court dismissed the
applicant's claim. It reasoned that the decision of the
administrative authorities concerning his reinstatement to his
previous post would not enable him to claim the rights and earnings
which were denied him during the suspension and dismissal periods.
- On
6 April 2000 the Supreme Administrative Court dismissed the
applicant's request for appeal. It opined that the reinstatement of
the applicant did not give him the right to recuperate rights and
earnings for the suspension and dismissal period.
- On
31 August 2000 the Supreme Administrative Court's decision was served
on the applicant.
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.
- The
period to be taken into consideration began on 30 May 1994 and ended
on 31 August 2000. It therefore lasted six years and three months
before two levels of jurisdiction.
A. Admissibility
- Relying
on the Court's jurisprudence the Government contended that Article 6
was not applicable in the instant case, given that the dispute in
question was not purely or essentially economic (see Neigel v.
France, judgment of 17 March 1997, Reports of Judgments and
Decisions 1997 II, p. 410, § 43); Francesco
Lombardo v. Italy, judgment of 26 November 1992, Series A
no. 249 B, p. 26-27, § 17, Massa v.
Italy, judgment of 24 August 1993, Series A no. 265 B,
p. 20, § 26; Nicodemo v. Italy, judgment of 2 September
1997, Reports 1997 V, p. 1703, § 18; Huber
v. France, judgment of 19 February 1998, Reports
1998 I, § 37). Instead, it concerned the applicant's career
and his status as civil servant.
- The
applicant disputed the Government's claim.
- The
Court notes that it has recently revised its case-law concerning the
applicability of Article 6 § 1 to disputes between the State and
civil servants in its Vilho Eskelinen and Others v. Finland
judgment ([GC], no. 63235/00, § 62, ECHR 2007 ...).
Having regard to the new criteria adopted in the aforementioned case,
the Court observes that the dispute in the present case concerns the
applicant's salary rights which were denied to him during the period
of suspension from his post. In view of the Government's failure to
demonstrate, first, that the applicant did not have a right of access
to a court under national law and, secondly, that any exclusion of
the rights under Article 6 for the applicant was justified by the
subject matter of the dispute (ibid.), the Court considers
that Article 6 § 1 is applicable in the instant case. It
therefore dismisses the Government's objection in this respect.
- The
Court also 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained of a violation of Article 4 of the
Convention and Article 1 of Protocol No.1, in that he had been forced
to work for an additional period of eight years in order to receive a
retirement pension and that the national courts misinterpreted the
domestic law in denying him his rights and salaries for the unlawful
suspension and dismissal periods.
- However,
the Court finds nothing whatsoever 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 80,855 euros (EUR) in respect of pecuniary damage
and EUR 20,000 for non-pecuniary damage.
- The
Government submitted that the amounts claimed were excessive and
would 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, it considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 3,000 in this respect.
B. Costs and expenses
- The
applicant also claimed EUR 15,128 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 head.
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 3,000
(three thousand 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 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 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
