European Court of Human Rights

SECOND SECTION

DECISION

Application no. 17553/03
by Ökkeş DOĞAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 2 December 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,

and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 22 April 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ökkeş Doğan, is a Turkish national who was born in 1943 and lives in Gaziantep. The Turkish Government (“the Government”) are represented by their Agent.

The circumstances of the case

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

On 22 August 2000 the applicant retired from his job at the İslahiye Municipality. On the same day, the town council calculated the applicant’s severance benefits at 8,472,774,000 Turkish liras (TRL)¹ and ordered its payment.

On an unspecified date the applicant applied to the office of the Ministry of Labour and Social Security in Gaziantep, requesting this office to calculate his pension benefits. An inspector was appointed, who established on 12 February 2001 that the Municipality owed the applicant a total of TRL 11,602,085,000² in respect of his pension benefits, namely severance benefits, wages and reimbursement of past contributions to the employees’ savings fund.

On 11 May 2001 the applicant applied to the İslahiye Execution Office, requesting the payment of his pension benefits, plus interest at the highest annual bank deposit rate. The Municipality objected to the applicant’s request for interest.

On 5 June 2001 the applicant brought an action before the İslahiye Enforcement Court to overturn the Municipality’s objection.

On 6 December 2001 the court partially granted the applicant’s request. It ordered the Municipality to pay the applicant’s pension and savings, plus interest at the statutory rate, with effect from 14 August 2000. It also granted the applicant’s request in respect of severance benefits, which it ordered to be paid together with interest at the highest annual bank deposit rate.

Subsequently, the applicant started execution proceedings via the İslahiye Execution Office and served a garnishee order on the Municipality’s bank accounts in order to enforce the payment of its outstanding debt. Following the garnishee order, the Municipality lodged an objection with the İslahiye Enforcement Court and requested the annulment of the garnishee proceedings. In its objection, the Municipality contended, inter alia, that the garnishee measures could not be applied to its bank accounts, since the funds in these accounts were allocated to public services. In its judgment of 30 July 2002, the İslahiye Enforcement Court upheld the Municipality’s request and ordered the annulment of the garnishee proceedings.

On 12 August 2002 the applicant appealed.

On 8 November 2002 the Court of Cassation upheld the first-instance court’s judgment.

In a letter dated 28 September 2004, the applicant informed the Court that he had not yet been paid his pension benefits and that he had rejected the Municipality’s offer to pay him only a third of the debt.

On 5 October 2004 a settlement agreement was reached by the applicant and the authorities. It was established in the agreement that the Municipality owed the applicant a total of TRL 36,669,592,000³ but that the applicant agreed to waive all his rights and claims in relation to the Municipality’s outstanding debt in return for a payment of TRL 23,000,000,000⁴. The agreement expressly stipulated that the applicant also waived any potential right and claims in connection with any pending law suits and execution proceedings against the Municipality.

On 23 February 2005 the parties signed an additional settlement agreement whereby they revised the payment plan but maintained the remaining terms and conditions set out in the original agreement.

On 17 April 2006 the payment of TRL 23,000,000,000 was completed. The applicant subsequently signed an acquittance (ibraname), releasing the Municipality from all liability.

COMPLAINTS

The applicant complained that the authorities’ failure to pay him his severance benefits, wages and indemnities despite the decision of the İslahiye Enforcement Court had violated his rights guaranteed by Article 4 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The Court firstly notes that the applicant’s complaint under Article 4 of the Convention and Article 1 of Protocol No. 1 regarding the non-payment of his pension benefits despite a court decision should be examined from the standpoint of Article 1 of Protocol No. 1 alone.

By letter dated 12 December 2007 the Government informed the Court that a settlement agreement had been reached by the applicant and the authorities on 5 October 2004 in relation to the outstanding debt of the Municipality, whereby the applicant waived all his rights and claims against the latter and agreed to discontinue all pending lawsuits and execution proceedings. The Government also informed the Court that the debt had been completely discharged on 17 April 2006 in accordance with the settlement agreement and that the applicant had signed an acquittance to this effect.

The applicant maintained in his observations that the Government had still not fully discharged its debt as the TRL 23,000,000,000 which had been paid to him had not covered the whole debt.

The Court takes note of the agreement of 5 October 2004 and the acquittance signed by the applicant following the completion of the payment.

The Court reiterates the terms of Article 37 § 1 of the Convention, which reads, in so far as relevant, as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (...)

2. the matter has been resolved; or

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In the present case, the Court considers that the matter has been resolved since the applicant’s complaint was related to non-payment of the sum, which has been paid by the Municipality under the terms of the settlement agreement signed by the applicant (see Şahin v. Turkey (dec.), no. 33902/02, 20 October 2005; Çiçek and Öztemel and Others v. Turkey, nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, § 22, 3 May 2007).

The Court further considers that respect for human rights as defined in the Convention or in its Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case. It therefore decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President