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TERZI v. TURKEY - 23086/07 [2011] ECHR 130 (25 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/130.html
Cite as:
[2011] ECHR 130
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SECOND
SECTION
CASE OF TERZİ v. TURKEY
(Application
no. 23086/07)
JUDGMENT
STRASBOURG
25
January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Terzi v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 23086/07) 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 Fevzi Terzi (“the applicant”), on 30
May 2007.
The
applicant was represented by Mr Ö. Tekeş and Mr H. Akçay,
lawyers practising in Amasya. The Turkish Government
(“the Government”) were represented by their Agent.
On
27 August 2009 the
Court decided to give notice of the application to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (former Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. First Set of Proceedings
The
applicant was born in 1966 and lives in Amasya.
On
29 August 2000 he brought proceedings before the Samsun
Administrative Court for annulment of an administrative penalty
imposed on him.
On
20 December 2000 the court dismissed the applicant's request.
On
22 October 2003 the Supreme Administrative Court quashed the judgment
of 20 December 2000.
On
18 February 2004 the court dismissed the applicant's request once
again.
On
6 December 2007 the Supreme Administrative Court's General Council of
Administrative Divisions quashed the judgment of 18 February 2004.
On
28 February 2008 the court granted the applicant's request and
annulled the administrative penalty imposed on the applicant.
On
7 October 2009 the Supreme Administrative Court upheld the judgment
of 28 February 2008.
B. Second Set of Proceedings
On
28 February 2001 the applicant lodged a case with the Samsun
Administrative Court for annulment of his appointment to a new post.
On
31 October 2001 the court dismissed the applicant's request.
On
21 February 2006 the Supreme Administrative Court upheld the
judgment of 31 October 2001.
On
29 November 2006 the Supreme Administrative Court dismissed a request
by the applicant for rectification of the judgment.
On
8 January 2007 the applicant was notified of the decision dated
29 November 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention. The
Government contested that argument.
For
the first set of proceedings the period to be taken into
consideration began on 29 August 2000 when the applicant lodged a
case with the Samsun Administrative Court and ended on 7 October 2009
when the Supreme Administrative Court dismissed the request for
rectification of judgment. It thus lasted nine years and a month
before two levels of jurisdiction.
For
the second set of proceedings the period to be taken into
consideration began on 28 February 2001 when the applicant lodged a
case with the Samsun Administrative Court and ended on
29 November 2006 when the Supreme Administrative Court
dismissed the request for rectification of judgment. It thus lasted
five years and nine months before two levels of jurisdiction.
The
Government put forward various preliminary objections concerning
non-exhaustion of domestic remedies and asked the Court to dismiss
the complaint under Article 6 § 1 of the Convention, as required
by Article 35 § 1 of the Convention.
The
Court notes that it has already examined similar submissions made by
the respondent Government in Daneshpayeh v. Turkey
(no. 21086/04, §§ 35-38, 16 July 2009). The
Government have not submitted any arguments which could lead the
Court to reach a different conclusion in the instant case.
Consequently, the Court rejects the Government's preliminary
objections as to the exhaustion of domestic remedies.
The
Government further argued that the applicant had failed to comply
with the six month rule under Article 35 § 1 of the Convention
in respect of the second set of proceedings.
The Court observes that in the present case the final
decision was notified to the applicant on 8 January 2007 and the
application was introduced on 30 May 2007, i.e. within six months
following the notification of the decision of 29 November 2006. The
applicant must therefore be considered to have complied with the
six-month rule provided under Article 35 § 1 of the Convention.
The Government's objection must therefore be rejected.
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
As
regards the merits, the Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case and the conduct of the applicant
and of the relevant authorities (Daneshpayeh, cited above, §
26).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (Daneshpayeh, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
The
applicant complained that his rights under Articles 6, 9, 10, 17, and
18 of the Convention had been violated as a result of the
unfavourable outcome of the proceedings. Under Article 14 of the
Convention and Article 1 of the Protocol no. 12 to the
Convention the applicant argued that he had been discriminated
against on account of his political views. The applicant further
contended that his appointment, which had compelled him to move to
another city, had violated his right to private and family life under
Article 8 of the Convention. The applicant claimed that his
administrative punishment and his appointment to a new post had
constituted punishment without law in breach of Article 7 of the
Convention.
The Court considers that, as Protocol No. 12 has not
been ratified by the respondent State, the applicant's complaint in
this regard is incompatible ratione personae with the
Convention and must therefore be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
As
regards the remaining complaints, in the light of all the material in
its possession, the Court finds that the above submissions by the
applicant do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that these complaints must be declared inadmissible as being
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention (see, in particular, García
Ruiz v. Spain [GC], no. 30544/96, §§
28-29, ECHR 1999-I, and Soysal and Others v. Turkey,
nos. 54461/00, 54579/00, and 55922/00, § 45, 15 February
2007).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 331,500 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
award him EUR 6,200 under that head.
B. Costs and expenses
The
applicant also claimed EUR 1,565 for the costs and expenses incurred
before the domestic courts and the Court. That sum comprised domestic
court fees and postal expenses incurred in the course of the domestic
proceedings and the proceedings before the Court. In support of his
claims the applicant submitted invoices for the postal expenses and
for the domestic fees, as well as a legal fee agreement but he failed
to prove that he actually incurred the amount concluded in the
agreement.
The
Government contested the claim.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 500 covering
costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i)
EUR 6,200 (six thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 500 (five hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
