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GULER AND KEKEC v. TURKEY - 33994/06 [2011] ECHR 897 (7 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/897.html
Cite as:
[2011] ECHR 897
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SECOND
SECTION
CASE OF GÜLER AND KEKEÇ v. TURKEY
(Applications
nos. 33994/06 and 36271/06)
JUDGMENT
STRASBOURG
7 June
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 Güler and
Kekeç v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Giorgio Malinverni,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 33994/06 and 36271/06)
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 two Turkish nationals, Mr
Mahmut Güler and Mr Ahmet Kekeç (“the applicants”),
on 1 August 2006.
The
applicants were represented by Mr A. Özçelik and Mr M.
Okutan, lawyers practising in Gaziantep. The Turkish Government (“the
Government”) were represented by their Agent.
On
16 September 2009 the President of the Second Section decided to give
notice of the applications to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was also decided to examine
the merits of the applications at the same time as their
admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASES
The
applicants were born in 1956 and 1946 respectively and live in
İslahiye, Gaziantep.
1. The first set of proceedings
Each
of the applicants, who were employees of the İslahiye
Municipality, brought proceedings before the İslahiye Civil
Court of First Instance acting as a labour court, claiming unpaid
wages and other pecuniary rights on 10 October 2001 and 21 November
2001, respectively.
On
21 May 2004 and 23 May 2003, respectively, the İslahiye Civil
Court of First Instance granted the applicants’ requests
partially and ordered the payment of 14,288 Turkish Liras (TRY)
to the first applicant and TRY 18,514
to the second applicant, together with interest. These judgments
became final as no appeal was filed against them.
The
first applicant further initiated execution proceedings before the
İslahiye Execution Office to obtain the amount ordered by the
İslahiye Civil Court of First Instance (file no. 2005/8415).
At
the date of introduction of the applications, the aforementioned
judgment debts were still outstanding.
2. The second set of proceedings
On
14 November 2002 and 14 September 2002, respectively, the applicants
retired from their jobs at the İslahiye Municipality. The town
council calculated the applicants’ severance benefits
accordingly.
On
18 March 2003, not having been paid the amounts awarded, the
applicants brought proceedings before the İslahiye Civil Court
of First Instance acting as a labour court, claiming severance
benefits and other pecuniary rights.
On
15 July 2004 the labour court ordered the Municipality to pay TRY
11,918
to the first applicant and TRY 12,119
to the second applicant, together with interest. These judgments
became final as no appeal was filed against them.
The
applicants further initiated execution proceedings before the
İslahiye Execution Office to obtain those amounts ordered by the
İslahiye Civil Court of First Instance (file nos. 2004/351 and
2004/352).
At
the date of introduction of the applications, the aforementioned
judgment debts were still outstanding.
THE LAW
I. JOINDER
Given
the similarity of the applications, both as regards fact and law, the
Court deems it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicants complained that the authorities’ failure to pay them
their severance benefits, unpaid wages and indemnities ordered by the
domestic courts violated their rights guaranteed by Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention.
A. Admissibility
The
Government asked the Court to dismiss the applicants’
complaints for failure to exhaust domestic remedies, as required by
Article 35 § 1 of the Convention. The Government argued
that the applicants had in particular failed to bring compensation
proceedings against the relevant administration and/or public
servants who had not complied with the requirements of the domestic
courts’ decisions. The Government further maintained that the
judgments of the first instance court remained valid despite the
inability of the İslahiye Municipality to pay the awards made.
In this regard, the Government also contended that the rates of
statutory interest which were applicable to the awards of the
applicants were higher than the inflation rates. Accordingly, the
Government claimed that the applicants could not be considered to
have been deprived of any rights under Article 1 of the Protocol
No.1.
As
regards the preliminary objection concerning non exhaustion of
domestic remedies, the Court recalls in the first place that a
person who has obtained an enforceable judgment against the State as
a result of successful litigation cannot be required to resort to
additional remedies to have it executed (see Metaxas v. Greece
, no. 8415/02, § 19, 27 May 2004, and Arat and Others
v. Turkey, nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04,
42908/04, 42909/04 and 42910/04, § 19, 13 January 2009). In the
same vein, the applicants were not required to bring compensation
proceedings against the administrative bodies or public servants for
the purposes of Article 35 § 1 of the Convention. In any event,
none of the remedies that the Government pointed to was capable of
offering the applicants any prospects of success in obliging the
national authorities to pay the due amounts. In this regard, the
Court further observes that the execution proceedings initiated by
the applicants also remained fruitless. The Government’s
preliminary objection must therefore be rejected.
As
for the second objection, that the complaints under Article 1 of the
Protocol No. 1 are manifestly ill-founded, the Court observes that it
has dismissed similar objections in its previous case-law (Çiçek
and Öztemel and Others, nos. 74069/01, 74703/01,
76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, § 37, 3 May
2007; Ekici and Others v. Turkey (no. 28877/03, §
26, 23 September 2008). It sees no reason to do otherwise in the
present case and therefore rejects the Government’s objection.
In this regard, the Court also recalls that the applicants’
complaints relate to the authorities’ failure to execute
binding judgments, not to the question whether the applicable
interest rates were higher than the inflation rates.
The
Court considers moreover that this application 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.
B. Merits
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS TO THE NON ENFORCEMENT OF THE DOMESTIC COURTS’
JUDGMENTS
The
applicants complained under Article 6 § 1 of the Convention of
the State authorities’ failure to execute the judgments of 21
May 2004 and 15 July 2004 with regard to the first applicant as well
as the judgments of 23 May 2003 and 15 July 2004, respectively,
with regard to the second applicant. In the absence of any appeal,
these judgments became final on different dates.
The
Court reiterates that the right to a fair hearing includes the right
to have a binding judicial decision enforced. That right would be
illusory if a Contracting State’s domestic legal system allowed
a final, binding judicial decision to remain inoperative to the
detriment of one party. The execution of a judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6 (Hornsby v. Greece,
19 March 1997, § 40, Reports 1997-II).
It
is not open to a State authority to cite lack of funds as an excuse
for not honouring a judgment debt. Whilst a delay in the execution of
a judgment may be justified in particular circumstances, it may not
be such as to impair the essence of the right protected by Article
6 § 1 (see Immobiliare Saffi v. Italy [GC],
no. 22774/93, § 74, ECHR 1999-V). In the instant case, the
applicants should not have been prevented from benefiting from the
success of the litigation on the ground of the alleged financial
difficulties experienced by the İslahiye Municipality.
The
Court considers that by failing for around seven and eight years to
ensure the execution of the binding judgments of 23 May 2003, 21 May
2004 and 15 July 2004, respectively, the Turkish authorities deprived
the provisions of Article 6 § 1 of the Convention of all useful
effect (see, among many others, Burdov v.
Russia (no. 2), no. 33509/04, §§
62-88, ECHR 2009 ...).
There
has accordingly been a violation of Article 6 § 1 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
Court reiterates that a “claim” may constitute a
“possession”, within the meaning of Article 1 of Protocol
No. 1, if it is sufficiently established as enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, § 59, Series A no. 301-B).
The
İslahiye Civil Court of First Instance’s judgments of
23 May 2003, 21 May 2004 and 15 July 2004, respectively,
provided the aforementioned applicants with enforceable claims and
not simply a general right to receive support from the State. The
judgments had become final as no appeal was filed against them and
enforcement proceedings had been instituted. It follows that the
impossibility for these applicants to have the judgments in their
favour enforced constituted an interference with their right to the
peaceful enjoyment of their possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1.
By
failing to comply with the judgments of the labour court, the
national authorities prevented the applicants from receiving the
money to which they were entitled. The Government have not advanced
any convincing justification for this interference and the Court
considers that a lack of funds cannot justify such an omission (see,
mutatis mutandis, Ambruosi v. Italy, no. 31227/96, §§ 28-34,
19 October 2000, and Burdov v. Russia, no. 59498/00, §§ 35
and 41, ECHR 2002-III, Çiçek and Öztemel and
Others, nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02,
25714/02 and 30383/02, § 42, 3 May 2007; Ekici and Others v.
Turkey (no. 28877/03, 23 September 2008, § 32).
It
follows that there has been a violation of Article 1 of
Protocol No. 1.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
Each
of the applicants claimed 100,000 euros (EUR), in respect of
pecuniary damage, corresponding to the potential financial benefits
they had been deprived of on account of the non-payment of amounts
ordered by the domestic courts. As regards non-pecuniary damage, each
applicant claimed that he had suffered distress and hardship on
account of the non-payment of the domestic judgment debts and
requested EUR 100,000.
The
Government contested these sums, alleging that they were based on
fictitious calculations. They also submitted that, were the Court to
find violations in the present cases, this would constitute
sufficient compensation for any non-pecuniary damage allegedly
suffered by the applicants.
The
Court notes that it has found a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 by reason of the
non-execution of final judicial decisions. The Court considers in the
light of its case-law that the payment by the Government of the
outstanding judgment debts would satisfy the applicants’ claim
for pecuniary damage (see, among others, Basoukou v. Greece,
no. 3028/03, § 26, 21 April 2005; Ahmet Kılıç
v. Turkey, no. 38473/02, § 39, 25 July 2006; Akıncı
v. Turkey, no. 12146/02, § 21, 8 April 2008; Kaçar
and Others, cited above, § 30). The Court therefore
considers that the respondent Government should ensure that the
İslahiye Civil Court of First Instance’s judgments of 23
May 2003, 21 May 2004 and 15 July 2004, respectively, are
executed by the administration in full.
The
Court further considers that the applicants must have suffered some
non-pecuniary damage which cannot be sufficiently compensated by the
finding of a violation alone. Consequently, taking into account the
circumstances of the case and making its assessment on an equitable
basis, the Court awards each of the applicants EUR 9,400 in respect
of non-pecuniary damage.
B. Costs and expenses
Each
of the applicants also claimed EUR 30,000 for the costs and expenses
incurred before the domestic courts and the Court. They
did not produce any supporting documents.
The
Government contested this claim.
According
to the Court’s case law, an applicant is entitled 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, the applicants have neither
substantiated nor documented that they have actually incurred the
costs claimed. Accordingly, the Court makes no award under this head.
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
Decides to join the applications;
Declares the applications admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final:
(i) the
amounts of the domestic judgment debts still owed to them, plus
statutory interest applicable under domestic law;
(ii) EUR
9,400 (nine thousand four hundred euros) each, plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Turkish liras at the rate applicable at the date of settlement;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley
Naismith Françoise Tulkens
Registrar President
