AS TO THE ADMISSIBILITY OF
by Vedat ARSLAN
The European Court of Human Rights (Second Section), sitting on 24 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 7 August 2004,
Having deliberated, decides as follows:
The applicant, Mr Vedat Arslan, is a Turkish national who was born in 1961 and lives in Kayseri.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 September 2001 the applicant, a civil servant at the Kayseri Directorate of Public Works and Settlement (“the Directorate”), petitioned the Ministry of Public Works and Settlement (“the Ministry”) regarding misconduct in the completion of a restoration project by the Directorate.
On 24 December 2001 the Supervisory Committee of the Ministry issued a report in which it refuted the applicant's allegations.
The applicant subsequently made statements to a local television channel in which he reiterated his allegations of misconduct.
On 19 February 2002 the contractor of the restoration project filed a complaint against the applicant with the Directorate, claiming that the applicant had attempted to bribe him with a view to making financial profit from the project.
1. Applicant's transfer and the ensuing administrative proceedings
On 8 March 2002 the Kayseri Governor's Office requested that the applicant be transferred to another province on account of his ill-founded allegations of misconduct regarding the Directorate's projects and his questionable dealings with contractors.
As a result, on 27 March 2002 the applicant was transferred to the Zonguldak Directorate of Public Works and Settlement by an order of the Kayseri Directorate.
On 29 April 2002 the applicant sought the annulment of the transfer before the Kayseri Administrative Court. On 31 December 2002 the Kayseri Administrative Court rejected the applicant's request, holding that the authorities had acted within their discretionary powers in transferring him.
On 17 February 2006 the Supreme Administrative Court quashed the administrative court's decision. The Supreme Administrative Court held that the transfer order had been illegal, in that it had been issued prematurely, prior to the finalisation of the investigation into the applicant's behaviour and the determination of any culpability.
On 21 February 2007 the Kayseri Administrative Court granted the applicant's request and annulled the transfer order on account of his acquittal of misconduct charges (see below).
2. Criminal proceedings against the applicant
On 11 April 2002 the Kayseri Governor's Office authorised the opening of an investigation into the applicant's conduct. The initial authorisation issued by the Kayseri Governor's Office only concerned the wrongful allegations he had made on television. The authorisation was served on the applicant on 9 May 2002 and he based his initial defence in relation to this matter.
Following the service of this authorisation, however, the Kayseri Governor's Office issued another investigation authorisation, with the same date and number, concerning the applicant's accountability for his attempt to bribe the contractor of the restoration project. This second authorisation was communicated to the investigating authorities immediately and formed the basis of their inquiry, but it was only served on the applicant on 30 October 2002, five months after the service of the initial authorisation.
On 6 November 2002 the applicant objected to the second authorisation.
On 18 December 2002 the Kayseri Administrative Court dismissed the applicant's objection (case no. 2002/109).
On 27 December 2002 the Kayseri Public Prosecutor filed a bill of indictment with the Kayseri Criminal Court, accusing the applicant of official misconduct.
On 31 March 2003 the Kayseri Criminal Court acquitted the applicant for lack of evidence.
3. Criminal proceedings against the Governor of Kayseri
On 18 October 2002 the applicant filed a criminal complaint with the Kayseri Public Prosecutor against the Governor of Kayseri, alleging forgery. The applicant argued that the Governor had unlawfully altered the initial decision authorising the launching of an investigation against him by adding additional offences to the original decision.
On 19 January 2004 the public prosecutor decided that no prosecution could be brought against the Governor of Kayseri, as the Ministry of the Interior had not issued any prior authorisation to do so.
On 2 March 2004 the applicant objected to this decision, the result of which is unknown.
4. Civil proceedings for compensation
On 20 June 2003 the applicant brought compensation proceedings against the Governor of Kayseri before the First Chamber of the Kayseri Civil Court (case no. 2003/570). In 2005 the Governor of Kayseri brought counter-proceedings for compensation before the Fourth Chamber of the Kayseri Civil Court (2005/168). On an unspecified date, the cases were joined.
On 5 June 2008 the court of first instance rejected both claims.
According to the information in the case file, the matter is still pending before the Court of Cassation.
The applicant complained under Article 6 § 1 of the Convention of an alleged lack of independence and impartiality on the part of the Kayseri civil and administrative courts.
The applicant further complained under Article 6 § 1 of the excessive length of the civil proceedings for compensation before the Kayseri Civil Court.
The applicant also maintained under Article 6 § 1 that the delayed service of the amended decision of the Kayseri Governor's Office authorising his trial had infringed his defence rights.
Lastly, the applicant complained under Article 6 § 1 that the national authorities' failure to institute criminal proceedings against the Governor of Kayseri had breached this provision.
Relying on Article 8 of the Convention, the applicant alleged that his transfer to another province had violated his right to respect for family life.
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.
It follows that this part of the application should be rejected 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 under Article 6 § 1 of the Convention concerning the length of the compensation proceedings before the Kayseri Civil Court;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens