CASE OF CAN v. TURKEY
(Application no. 2437/08)
25 September 2018
This judgment is final but it may be subject to editorial revision
In the case of Can v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 4 September 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 2437/08) 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, Ms Zeliha Eylem Can ("the applicant"), on 4 January 2008.
2. The applicant was represented by Mr Y. Alataş, a lawyer practising in Ankara. The Turkish Government ("the Government") were represented by their Agent.
3. On 6 January 2014 the complaint concerning the applicant's right not to be subjected to discrimination under Article 14 of the Convention, in conjunction with Article 8, was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1974 and lives in Adıyaman.
5 . On 17 October 1999 the applicant sat an examination in order to become a public servant. She was successful in the examination and on 27 June 2000 she was notified by the State Personnel Department attached to the Prime Minister's office that she had been appointed to the post of security officer in the Kilis branch of TEDAŞ, the state-run Electricity Company.
6. On 4 September 2000 the Kilis branch of TEDAŞ informed the applicant that she would not be appointed to a post in that office as she did not fulfil the requirements of "being a man" and "having completed military service".
7. On an unspecified date the applicant lodged an action against TEDAŞ with the Ankara Administrative Court requesting the annulment of the decision of the Kilis branch of TEDAŞ. In her deposition, the applicant noted that being a man was not a requirement for appointment to the post in question and that she fulfilled all the requirements for that post.
8. On an unspecified date the general directorate of TEDAŞ submitted to the administrative court that one of the requirements for the post in question had been declared by the State Personnel Department as "having completed military service" and that therefore only men could be appointed to the post. The applicant, being a woman, could therefore not be recruited as a security officer.
9. On 28 November 2001 the Ankara Administrative Court annulled the decision of the Kilis branch of TEDAŞ. The court held that the requirement of "having completed military service" should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ.
10. On 30 January 2002 TEDAŞ lodged an appeal against the judgment of 28 November 2001.
11. On 1 April 2003 the applicant was recruited by TEDAŞ.
12. On 21 October 2003 the Supreme Administrative Court quashed the judgment of the Ankara Administrative Court, holding that the requirement regarding military service demonstrated that the post in question was reserved for male candidates. The high court therefore found that the administration's decision had been in accordance with the law.
13. On 19 March 2004 the applicant was dismissed from her post.
14. On 30 December 2004 the Ankara Administrative Court dismissed the applicant's case, taking into consideration the decision of the Supreme Administrative Court.
15. On 7 May 2007 the Supreme Administrative Court dismissed the applicant's appeal and upheld the judgment of 30 December 2004.
16. On 12 July 2007 the Supreme Administrative Court's judgment was notified to the applicant.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
17. Relevant domestic law, in force at the material time, and international material can be found in Emel Boyraz v. Turkey (no. 61960/08, §§ 26-30, 2 December 2014).
I. THE GOVERNMENT'S OBJECTION
18. The Government submitted that the applicant had failed to submit an authority form authorising her representative to lodge the case with the Court.
19. The Court observes that when the notice of the application was given to the respondent Government, the applicant's representative was requested to submit an authority form. On 2 April 2014 he submitted an authority form indicating that he represented the applicant. The Government's argument on that point should therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
20. Relying on Article 14 of the Convention and Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which prohibits discrimination against women in the field of employment, the applicant complained that the administrative authorities' decisions and the domestic courts' judgments constituted discrimination against her on grounds of sex.
21. The Government contested that argument.
22. The Court, as the master of the characterisation to be given in law to the facts of any case before it and having regard to the circumstances of the present case, considers that this complaint falls to be examined under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention (see Emel Boyraz v. Turkey , no. 61960/08, § 33, 2 December 2014, and the cases cited therein, and Radomilja and Others v. Croatia [GC], nos. 37685/10and 22768/12, § 126, ECHR 2018). Articles 8 and 14 provide as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
23. The Government submitted that neither Article 8 nor Article 14 was applicable in the instant case as it concerned a right which was not secured by the Convention, namely the right to access to a particular profession.
24. The applicant contested that claim.
25. The Court notes that it has already examined and rejected the Government's preliminary objection in the case of Emel Boyraz (cited above, §§ 38-46). The Court finds no particular circumstances in the present case which would require it to depart from that conclusion. The Court considers that Article 14 of the Convention is applicable in the circumstances of this case, taken in conjunction with Article 8, and rejects the Government's objection.
26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
27. The Government maintained that there had been an objective and reasonable justification for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates in view of the nature of the service, which involved bearing and using firearms. They submitted that male candidates had already received training in use of firearms and were able to work in rural areas and at night time, where necessary.
28. The applicant submitted that being a woman was not an obstacle to use firearms and working in rural areas and at night time. She noted that women were employed as police and prison officers.
29. The Court notes that in the case of Emel Boyraz (cited above, §§ 48-56), which raised the same issues as those in the present case, it held that this difference in treatment between women and men, of which the applicant had been a victim, was not objectively and reasonably justified under Article 14.
30. 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. In particular, in the Court's view, the mere fact that security officers had to work on night shifts and in rural areas and might be required to use firearms and physical force under certain conditions could not in itself justify the difference in treatment between men and women. Besides, Ms Can worked as a security officer between 1 April 2003 and 19 March 2004 and that there was nothing in that case file to indicate that the applicant had failed to fulfil her duties as a security officer in TEDAŞ because of her sex.
There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
31. 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."
32. The applicant claimed 55,962.45 euros (EUR) in respect of pecuniary damage in her submissions dated 14 September 2014. She contended that she had been deprived of a salary and her pension rights between 2000 and 2014. In that connection, she noted that when she had been employed at the Kilis branch of TEDAŞ between 1 April 2003 and 19 March 2004, her salary had been EUR 139. In support of her claim for pecuniary damage, the applicant submitted a table indicating the minimum wage scales between 1996 and 2014 and a document prepared by the Social Security Institution of Turkey indicating calculation of amounts concerning minimum wages. The applicant also claimed EUR 25,000 in respect of non-pecuniary damage.
33. The Government contested those claims.
34. The Court notes that in the present case the applicant was dismissed from her post on account of her sex, which the Court has found to be discriminatory, in breach of Article 14 in conjunction with Article 8 of the Convention. The loss of her employment undoubtedly deprived the applicant of her main source of income. Hence, there is a direct causal link between the violation found and the pecuniary damage claimed, which has to be reimbursed in such a way as to restore, as far as possible, the situation existing before the breach (see, inter alia, Rainys and Gasparavičius v. Lithuania , nos. 70665/01and 74345/01, § 45, 7 April 2005). However, the Court notes that a precise calculation of the sums necessary to make complete reparation ( restitutio in integrum ) in respect of the pecuniary loss suffered by the applicant is prevented by the inherently uncertain character of the damage flowing from the violations. This is particularly so in relation to the question of how long the applicant would have remained in TEDAŞ had it not been for her dismissal. Nevertheless, an award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, which it is necessary to award to each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (see Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96and 32377/96, §§ 22-23, 25 July 2000, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96and 33986/96, §§ 18-19, ECHR 2000-IX).
35. The Court notes that the applicant did not provide information to the Court as to how long she had remained unemployed after she had been dismissed from her position in TEDAŞ or whether she had taken any steps to mitigate her loss of earnings. The Court therefore finds it difficult to ascertain the precise amount of pecuniary damage which ensued. At the same time, it considers that the applicant would have been able to work as a security officer at least between 27 June 2000 (the date on which she was notified that she had been appointed to the post of security officer in the Kilis branch of TEDAŞ) and 1 April 2003 (the date on which she started working subsequent to the first-instance court's judgment in her favour). Moreover, had the administrative courts prevented the violation found under Article 14 in conjunction with Article 8 of the Convention, the applicant would have been able to obtain redress for her loss of income concerning the period starting from her dismissal until the date of the final judgment in the domestic proceedings. The Court also considers that the applicant must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Therefore, taking into account the number of imponderables involved in the assessment of the applicant's loss of earnings and in the light of all the information in its possession, the Court decides on an equitable basis to award the applicant an aggregate sum of EUR 11,000 under all heads of damage combined, plus any tax that may be chargeable on that amount.
B. Costs and expenses
36. The applicant also claimed EUR 6769,11 for his lawyer's fee incurred before the domestic courts and for those incurred before the Court. In support of his claim the applicant submitted the Turkish Bar Association's scale of fees.
37. The Government contested that claim.
38. In accordance with the Court's case-law, an applicant is entitled to reimbursement of his 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 Court notes that the applicant merely referred to the Istanbul Bar Association's scale of fees and failed to submit any supporting documents. In those circumstances, and bearing in mind the terms of Rule 60 § 2 and 3 of its Rules, the Court makes no award in respect of the costs and expenses claimed by the applicant (see, inter alia, Hasan Döner v. Turkey , no. 53546/99, §§ 59-61, 20 November 2007, and Yılmaz Yıldız and Others v. Turkey , no. 4524/06, § 57, 14 October 2014).
C. Default interest
39. The Court considers it appropriate that the default interest rate 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,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 14 of the Convention, in conjunction with Article 8 of the Convention;
(a) that the respondent State is to pay the applicant within three months, EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage, to be converted into the currency of the respondent State 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;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Deputy Registrar President