European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42952/04
by Murat ZEYTINLI
against Turkey

The European Court of Human Rights (Second Section), sitting on 21 October 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 24 September 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Murat Zeytinli, is a Turkish national who was born in 1965 and lives in İstanbul. He is represented before the Court by Mr Ç. Yüksel, a lawyer practising in İstanbul.

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

The applicant, who had succeeded in a competitive examination held by the İstanbul Stock Exchange (hereinafter “the IMKB”), was not recruited following his second interview.

First set of proceedings

On 14 January 1991 the applicant initiated proceedings before the İstanbul Administrative Court contesting the IMKB's decision not to recruit him.

The administrative proceedings concerning the applicant's request to be recruited by the IMKB lasted approximately 12 years and 5 months at three levels of jurisdiction, during which eight judgments were delivered.

During the course of the proceedings the İstanbul Administrative Court ordered the suspension of the IMKB's decision, following which the applicant was recruited on 16 December 1996.

The final decision concerning the applicant's recruitment was delivered by the Council of State, which dismissed the IMKB's rectification request on 16 June 2003. The decision was served on the applicant on 17 October 2003.

Second set of proceedings

On 2 July 1998 the applicant initiated a second set of proceedings before the İstanbul Administrative Court. He requested 47,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 5,000,000,000 in respect of non-pecuniary damage for the period between November 1990 and 16 December 1996 during which he had not been recruited.

On 18 July 1998 the IMKB challenged the jurisdiction of the İstanbul Administrative Court, which held on 23 December 1998 that it had jurisdiction in the case.

On 8 February 1999 the IMKB repeated its challenge and requested that the matter be referred to the Jurisdiction Disputes Court.

On 7 July 1999 the Court of Cassation confirmed the public-corporation nature of the IMKB and held that the matter fell within the jurisdiction of the administrative courts.

On 30 November 2001 the İstanbul Administrative Court dismissed the applicant's claim in respect of non-pecuniary damage and awarded him TRL 3,117,228,526¹ in respect of pecuniary damage, plus default interest running from the date on which the debt arose until the date of payment. In reaching this sum the court first calculated the total net income an IMKB staff member would have earned during the period in question and then subtracted the amount of income the applicant had actually earned working elsewhere during the same period.

On 11 April 2002 the applicant requested, from the IMKB and the local bank where the monthly salaries of IMKB staff members were deposited, information concerning the monthly income of a number of IMKB staff members whom he had named. On 7 May 2002 the IMKB rejected the applicant's request on the ground that he had not submitted an authority form to examine personal details of the individuals he had named, but he could have access to any other information that was not confidential at the Personnel Department.

Both parties appealed.

On 11 May 2005 the IMKB paid the applicant TRL 17,275,000,000¹.

On 24 May 2005 the Council of State upheld the judgment.

On 9 September 2005 the applicant requested rectification.

On 10 December 2007 the Council of State dismissed the applicant's request. The applicant was notified of this on 7 February 2008.

COMPLAINTS

The applicant alleges that the length of the administrative proceedings exceeded the reasonable time requirement, in breach of Article 6 of the Convention.

The applicant further complains under Article 6 of the Convention about the conduct and outcome of the proceedings. Concerning the first set of proceedings, he alleges that he ought to have been recruited at the same grade as those who had passed the competition and were recruited six years before him. In respect of the second set of proceedings, he alleges that the court which dismissed his claim in respect of non-pecuniary damage and miscalculated the compensation amount should have sought an expert opinion. He adds that he was not allowed access to the income details of other IMKB staff members.

Relying on Article 1 of Protocol No. 1, the applicant alleges, lastly, that his right to respect for his property was infringed in that the interest payable on the compensation awarded by the İstanbul Administrative Court was insufficient, and in any event payment was delayed. He further complains about the calculation method applied by the domestic courts and their refusal to grant him the amount of compensation he requested.

THE LAW

It follows that the applicant's complaints related to the first set of administrative proceedings have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court observes that the second set of proceedings lasted for over nine years and five months. It considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

In addition, the applicant invoked Article 1 of Protocol No. 1, contending that he had suffered financial loss as a result of the calculation method applied by the domestic courts and their refusal to award him the amount of compensation he had requested. However, the Court considers that this aspect of the applicant's complaints should be examined solely under Article 6 § 1 of the Convention.

The Court reiterates that, while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, §§ 45 46, Series A no. 140; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 I). The Court further reiterates that the domestic courts are better placed than the Court to assess the necessity of obtaining an expert opinion (see Friedrich Schumacher v. Germany (dec.), no. 14029/05, 26 February 2008).

With respect to the applicant's complaint concerning access to the income details of other IMKB staff, the Court observes that the applicant approached the IMKB and the competent bank for this information but not the domestic courts. The Court notes that there is no indication in the case file of any restrictions imposed by the Administrative Court on access to the case documents or that the applicant could not duly present his arguments or state his case fully; nor is there any indication of unfairness or arbitrariness concerning the assessment of the facts or evidence or the interpretation of the domestic law, in possible breach of Article 6 § 1 of the Convention. The Court further notes that the judgments delivered by the domestic courts explained the facts, the parties' submissions, the calculation method applied and the court's interpretation, as well as the relevant legal provisions. The requirements of Article 6 of the Convention in these respects have therefore been met.

Accordingly, the Court rejects this part of the application as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the length of the second set of administrative proceedings and the alleged insufficiency of the interest payable on the compensation he received;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President