European Court of Human Rights

 

 

SECOND SECTION

CASE OF YILDIZ v. TURKEY

(Application no. 47124/10)

 

 

 

 

JUDGMENT

STRASBOURG

27 April 2021

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Yıldız v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Aleš Pejchal, President,
          Egidijus Kūris,
          Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 47124/10) 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 Muammer Yıldız (“the applicant”), on 21 June 2010;

the decision to give notice to the Turkish Government (“the Government”) of the complaint concerning the fairness of civil proceedings and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 30 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns alleged contradictory decisions delivered by the administrative courts in identical cases and the applicant’s complaint that the domestic courts failed to provide sufficient reasoning in their decisions.

2.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

3.  The applicant, who was born in 1973, lives in Konya. He was represented by Mr Ümit Olgun, a lawyer practising in Konya.

4.  The Government were represented by their Agent.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

6.  The applicant was employed as a temporary worker at the bakery of the facilities of the Department of Food Engineering at the Faculty of Agriculture in the Selçuk University, a public entity.

7.  On 10 August 2007 the applicant requested the University to be employed under a permanent labour contract based on Law no. 5620.

8.  On 5 November 2007 the University rejected the applicant’s request.

9.  The applicant brought an action before the Konya Administrative Court, seeking the annulment of the decision dated 5 November 2007. He stated that he had held a temporary contract with the University for four years, that he had handled the type of work that had been incumbent upon labourers, and that he had also been occasionally deployed to work at implementation facilities and farms.

10.  On 31 October 2008 the 2^nd Chamber of the Konya Administrative Court rejected the applicant’s case. The court held that the type of the applicant’s assignments and the place of his work did not match the criteria stipulated in Law No. 5620, and thus it was considered that he did not qualify to obtain a permanent labour contract.

11.  In the meantime, two of the applicant’s colleagues, who were allegedly in similar situations and held similar posts, also applied to the Konya Administrative Court following the refusal of the University to award them a permanent contract. On 25 September 2008 the 1^st Chamber of the Konya Administrative Court accepted their requests and annulled the respective decisions of the University in respect of Y.Ö and E.K.

12.  The applicant appealed, reiterating his previous arguments, and also referred to the two separate judgments of the 1^st Chamber of Konya Administrative Court where that court had accepted the allegedly similar cases of Y.Ö. and E.K.

13.  On 15 May 2009 the 12^th Division of the Supreme Administrative Court upheld the judgment of 31 October 2008 delivered by the Konya Administrative Court, stating solely that the first instance court’s findings were in accordance with the law.

14.  On an unspecified date, the applicant applied for rectification of the decision of 15 May 2009. In his petition, he explicitly referred to the decisions of the 12^th Division of the Supreme Administrative Court which had previously upheld the cases of Y.Ö. and E.K. at the appeal stage, on 15 May 2009 and 22 May 2009 respectively. He argued in this connection that the 12^th Division had rendered contradictory judgments in identical cases; and requested the court to rectify its previous decision.

15.  On 22 December 2009 the 12^th Division of the Supreme Administrative Court dismissed the rectification request, holding that none of the reasons put forward by the applicant fell within the exhaustive list of permissible grounds for rectification. Thus, the decision of the 2^nd Chamber of the Konya Administrative Court, dated 31 October 2008, became final.

16.  Subsequently, on 16 September 2015 the applicant filed a new request with the University to be appointed to a permanent position. His request was rejected. The applicant once again initiated proceedings before the Konya Administrative Court to have that decision annulled. On 8 March 2016 the court annulled the University’s decision and held that the applicant should be offered a permanent contract bearing in mind the type of work he had been carrying out for the last eleven years. Accordingly, on 2 May 2016 the applicant obtained a permanent labour contract from the Selçuk University.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

17.  The copies of documents concerning cases of Y.Ö. and E.K. were submitted to the case file. It appears that Y.Ö. and E.K. held temporary contracts with the Konya Selçuk University, where they worked in the production of dairy and baked goods at the pilot facilities of the University. Their requests to obtain permanent labour contracts were rejected by the University and thereafter they brought separate claims with the Konya Administrative Court and challenged those decisions. On 25 September 2008, in separate judgments, the 1^st Chamber of the Konya Administrative Court accepted their claims, considering that their workplace and type of assignments met the requirements stipulated in Law No. 5620 and concluded that they qualified to be employed as public sector workers under permanent contracts. On 15 May 2009 the 12^th Division of the Supreme Administrative Court upheld both of those judgments. On 25 December 2009 the same division rejected the requests of rectification lodged by the administration.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

18.  The applicant complained that the domestic courts had delivered contradictory decisions in identical cases and had failed to provide sufficient reasoning in their decisions.

19.  The Government contested those arguments.

20.  The Court considers that this complaint should be examined from the standpoint of Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] tribunal.”

A.    Admissibility

21.  The Government argued that the applicant lost his victim status and abused his right to individual application, as he concealed new developments concerning the proceedings before the Court. In this connection, the Government submitted that in 2016 the applicant brought a new set of proceedings with the Konya Administrative Court where he challenged another decision of the Konya Selçuk University dismissing his request for a permanent contract. On 8 March 2016 the Konya First Chamber of the Administrative Court accepted the applicant’s case and consequently since 2 May 2016 the applicant has been working under a permanent labour contract with the University.

22.  The applicant contested the Government’s objections. He accepted that he was now working under a permanent contract with the university but argued that he had maintained his victim status as his case had been rejected upon an unfair hearing, depriving him of a higher pay between 2008 and 2016.

23.  The Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see O’Keeffe v. Ireland [GC], no. 35810/09, § 115, ECHR 2014 (extracts)). In the present case, however, although the domestic courts had later accepted the applicant’s request for a permanent labour contract, none of those courts acknowledged any mishandling of the previous proceedings which gave rise to the application at issue. Accordingly, the applicant had not been provided with any redress in this respect. The Court therefore concludes that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention.

24.  The Court further reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Centro Europa 7 S.r.l. and Di Stefano, cited above).

25.  In the present case, the Court notes that the applicant’s complaint that was communicated to the Government concerned the fairness of the proceedings which had been decisively concluded on 22 December 2009. Although the new set of proceedings referred to by the Government concerned the same substantial matter, they did not bear any weight on the fairness of the proceedings subject to the application at issue. In those circumstances, it cannot be concluded that the applicant neglected to inform the Court of essential elements for the examination of the case by not providing information as to his assignment as a permanent worker to the University. Accordingly, there is no basis for finding that the applicant abused his right of individual petition in the present case.

26.  The Government’s objections can therefore be dismissed.

27.  The Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

28.  The Government requested the Court to reject the application for being manifestly ill-founded. They submitted that the applicant’s case was different than those of his colleagues and thus it was sufficient for the Supreme Administrative Court to simply adopt the first instance court’s decision and reasoning when rejecting the applicant’s case.

29.  The Court reiterates at the outset that conflicting decisions in similar cases heard in the same court which, in addition, is the court of last instance in the matter may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see, inter alia, Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, § 30, 25 April 2013, and Emel Boyraz v. Turkey, no. 61960/08, § 72, 2 December 2014). The criteria that guide the Court’s assessment of the conditions in which conflicting decisions are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether profound and long‑standing differences exist in the case-law of the domestic courts, whether the domestic law provides for a mechanism for overcoming these inconsistencies, whether that mechanism has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others v. Bulgaria, no. 23530/02, §§ 49-50, 2 July 2009; and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 53, 20 October 2011).

30.  In the present case, the Court notes that during the domestic proceedings, the applicant referred to two decisions rendered by the 12^th Division of the Supreme Administrative Court in favour of his colleagues Y.Ö. and E. K., who had also been denied permanent labour contracts. While it is true that the 12^th Division of the Supreme Administrative Court reached different conclusions in seemingly similar cases, it cannot be said that there were “profound and long-standing differences” in the case-law. In these circumstances and bearing in mind that it is not the Court’s function to compare different decisions of national courts, even if delivered in respect of similar proceedings, the Court considers that those different decisions taken by the 12^th Division of the Supreme Administrative Court do not, in itself, give rise to a violation of Article 6 of the Convention (see Emel Boyraz, cited above, § 73; and Uğurlu and others v. Turkey [Committee], nos. 26437/08, 14954/09, 53137/09, 60300/10, § 20, 14 November 2017).

31.  The Court, however, reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, and the cases cited therein). Although Article 6 § 1 obliges courts to give reasons for their rulings, it cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the ruling and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303‑B; and García Ruiz, cited above, § 26). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s judgment (see Helle v. Finland, 19 December 1997, §§ 59-60, Reports of Judgments and Decisions 1997‑VIII; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; Stepanyan v. Armenia, no. 45081/04, § 35, 27 October 2009; and Emel Boyraz, cited above, § 74).

32.  The Court notes that both during the appeal proceedings and in his request of rectification, the applicant drew the attention of the 12^th Division of the Supreme Administrative Court to the cases brought by his colleagues, Y.Ö. and E.K. The 12^th Division of the Supreme Administrative Court, however, did not respond to the applicant’s submissions or the decisions concerning Y.Ö. and E.K.’s cases and explain why they differed from the applicant’s case. It simply endorsed the 2^nd Chamber of Konya Administrative Court’s judgment. Although such a technique of reasoning by an appellate court might in principle be acceptable in certain situations, it failed to satisfy the requirements of a fair hearing in the circumstances of the present case. The Court considers in this connection that the applicant’s claims showed significant resemblance to those raised by his colleagues, Y.Ö. and E.K. His submissions in this context therefore required an adequate response. The Court thus concludes that the 12^th Division of the Supreme Administrative Court failed to fulfil its duty to provide adequate reasoning for its decisions.

33.  The Court further notes that it has already examined an identical legal problem in a similar case, in which it concluded that there had been a violation of Article 6 § 1 of the Convention in that the domestic courts had failed to fulfil their duty to provide a response to the applicant’s submissions (see Emel Boyraz, cited above, § 75). It sees no reason to reach a different conclusion in the present case.

34.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  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.”

36.  The applicant claimed 150,000 euros (EUR) in respect of pecuniary damage, EUR 100,000 in respect of non-pecuniary damage and EUR 30,000 in respect of costs and expenses.

37.  The Government contested the claims.

38.  Having regard to the nature of the violation found, the Court notes that it cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicant under this head. As regards the claim for non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 4,000 under this head.

39.  As regards costs and expenses the Court reiterates that according to Rule 60 § 2 of the Rules of Court, any claim for just satisfaction must be itemised and submitted together with the relevant supporting documents. In the instant case the applicant did not submit any document to substantiate his claim for costs and expenses. In view of the applicant’s failure to comply with the aforesaid requirement, the Court makes no award for costs and expenses.

40.  The Court considers it appropriate that the default interest rate 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,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, together with any tax that may be chargeable;

(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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                        Aleš Pejchal
Deputy Registrar                                                                       President