AS TO THE ADMISSIBILITY OF
by Namık Kemal ÖZMEN
The European Court of Human Rights (Second Section), sitting on 3 March 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 18 December 2004,
Having deliberated, decides as follows:
The applicant, Mr Namık Kemal Özmen, is a Turkish national who was born in 1959 and lives in Ankara.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1991 the applicant was working as an auditor at the Social Services and Child Protection Agency (hereinafter “the CPA”) (Çocuk Esirgeme Kurumu) when he learned that his appraisal record contained a remark on the applicant's alleged weakness for women. The applicant filed two complaint letters to the general directorate of the CPA and the Ministry of State against the Chief Auditor who made his evaluation. He did not receive any reply.
On 17 February 1992 the applicant was promoted to Chief Auditor.
On 28 February 1992 the applicant filed a new request to the general management and demanded his 1991 appraisal record to be re-assessed. His request was rejected.
On 24 June 1992 the applicant instituted administrative law proceedings before the Ankara Administrative Court requesting the removal of the above mentioned remark from his appraisal record.
On an unspecified date the applicant settled in Australia and sent two separate letters to the Ankara Administrative Court. The date of the first letter is illegible, whereas the date on the other can only be partially read as 1994.
On 9 February 1994 the Ankara Administrative Court rejected the applicant's request. It held that an appraisal record was to be considered in its entirety and, in spite of the remark the applicant complained of, his overall assessment had been positive, as was shown by his promotion to Chief Auditor.
It appears the judgment of the Ankara Administrative Court was delivered to a third person at the applicant's previous work address in Turkey and, on an unspecified date, the applicant learned from his friends that the proceedings had ended and the judgment had become final.
On 30 April 1999 the applicant sent a letter to the Ministry of Justice, requesting that he be granted the right to appeal against the first instance court's judgment. By a decision of 13 July 1999, the Ankara Administrative Court noted that the applicant's letter concerning his new address had been received on 19 April 1994. The court further acknowledged that its judgment of 9 February 1994 had been delivered, in breach of the Notification Act, to a third person at the applicant's previous work address and that the judgment ought to be re-delivered to his new address for appeal purposes.
On the same day the Ankara Administrative Court issued a separate judgment holding that the applicant's above mentioned letter sent to the Ministry of Justice on 30 April 1999 could not be considered as a formal request for an appeal as for the statutory time limit would only start with the re-delivery of the judgment to the applicant's new address.
It appears the applicant was officially notified of the judgment on 7 January 2000, following which he appealed to the Council of State on 1 February 2000.
In December 2000 the applicant returned to Turkey and re-started work as an auditor at the CPA.
On 10 April 2002 the Council of State rejected the applicant's appeal on procedural grounds.
On 4 July 2002 the applicant requested the rectification of the judgment.
On 15 April 2004 the Council of State quashed the rejection decision that had been issued on procedural grounds but upheld the judgment of the administrative court on the merits.
The applicant was notified of the decision on 5 October 2004.
The applicant became an Australian citizen in 1995, changed his name to Michael Rainbow in 1996 and converted to Christianity in 2001.
The applicant contends that the length of the administrative proceedings in his case exceeded the reasonable time requirement of Article 6 § 1 of the Convention. He adds under Article 13 of the Convention that the domestic courts erred in their assessment of the facts, which deprived him of his right to have an effective remedy before domestic law.
The applicant further complains under Article 9 of the Convention that the remark concerning his alleged weakness for women and the negative outcome of the ensuing domestic proceedings were based on his conversion to Christianity, which amounts to a violation of his right to freedom of thought, conscience and religion.
The applicant maintains that the CPA annulled the appraisal records of other individuals, whereas his request in this regard was not taken into account. He relies on Article 14 of the Convention.
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 this part of the application to the respondent Government.
The Court first observes that this complaint is to be examined exclusively under Article 6 of the Convention. Secondly, the Court recalls that it is not competent to examine applications concerning errors of fact or law allegedly committed by the competent national authorities. Thirdly, there is no indication or basis on which to conclude that the domestic courts, in establishing the facts or interpreting the domestic law, acted in an arbitrary or unreasonable manner in the present case.
It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
Even assuming that the applicant has raised these complaints before domestic courts, thus exhausting domestic remedies, the Court observes that the applicant failed to substantiate his complaints. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with 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 administrative proceedings;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens