European Court of Human Rights

 

 

SECOND SECTION

CASE OF TETİK AND OTHERS v. TURKEY

(Applications nos. 25885/19 and 37 others)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

15 March 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Tetik and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Egidijus Kūris, President,
          Pauliine Koskelo,
          Gilberto Felici, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Turkish Government (“the Government”) represented by Mr Hacı Ali Açıkgül, Head the Human Rights Department of the Ministry of Justice, co-Agent of the Republic of Turkey before the European Court of Human Rights;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 22 February 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern the non-enforcement of domestic courts’ decisions despite the Compensation Commission’s findings of breach of the applicants’ right to a fair trial.

2.  In 2008, 2009 and 2010 the applicants were awarded compensation for their receivables arising from labour agreements with the Yüksekova Municipality (“the Municipality”) in three sets of civil proceedings before the Yüksekova Civil Court of First Instance. The details of the proceedings are set out in Appendix 2.

3.  The compensation amounts awarded by the Yüksekova Civil Court of First Instance to the applicants were not paid except for the compensation awarded in the first set of proceedings brought by the applicants in application no. 26026/19.

4.  On different dates in 2011, 2012 and 2013 the applicants applied to the Court complaining of the non-enforcement of domestic judicial decisions in their favour.

5.  In 2013 the Court held that their applications were inadmissible for non-exhaustion of domestic remedies due to the applicants’ failure to exhaust the Compensation Commission, domestic remedy established under Law no. 6384 which provides redress for complaints concerning, inter alia, non‑enforcement of domestic remedies.

6.  In 2014, the Compensation Commission awarded to the applicants non‑pecuniary damage for the excessive length of proceedings. It further transmitted its decision to the Municipality, requesting it to execute the judicial decisions in question.

7.  In the same year, the applicants also applied to the Constitutional Court complaining about the Municipality’s failure to enforce the relevant judicial decisions despite the decision of the Compensation Commission.

8.  In July 2018, as the applications were pending before the Constitutional Court, a provision empowering the Compensation Commission established under Law no. 6384 to deal with the applications pending before the Constitutional Court, concerning, inter alia, non-enforcement complaints were added to Law no. 6384.

9.  In the same year the Constitutional Court found the applicants’ applications inadmissible for non-exhaustion of domestic remedies, namely the Compensation Commission.

10.  On unspecified dates, some minor parts of the receivables were paid to some of the applicants.

THE COURT’S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

11.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION

12.  The applicants complain of the non-enforcement of domestic decisions given in their favour. They rely expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention.

13.  The Government firstly argued that because some of the compensation amounts were partially paid to them, the applicants lost their victim status, at the very least in respect of the portions paid.

14.  The Government secondly claimed that the applications were abusive on account of the failure of the applicants to inform the Court of the said partial payments made by the domestic authorities.

15.  The Government thirdly maintained that the applications had been inadmissible for non-exhaustion of domestic remedies because the applicants failed to apply to the Compensation Commission, established by Law no. 6384, after the Constitutional Court had found their applications inadmissible for non-exhaustion of domestic remedies.

16.  The Court observes that the applicants had already applied to the Compensation Commission before lodging their applications with the Constitutional Court. However, despite the Compensation Commission’s findings, the decisions of the Yüksekova Civil Court of First Instance awarding the applicants compensation had still not been fully enforced.

17.  Having examined all the material submitted to it and considering its case-law (see Hornsby v. Greece, no. 18357/91, Reports of Judgments and Decisions 1997‑II), the Court considers that the applications are not inadmissible on any grounds and that the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.

18.  There has therefore been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  Each of the applicants claimed 200,000 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 the amounts awarded by the domestic courts.

20.  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 50,000.

21.  The applicants further claimed EUR 500,000 in respect of costs and expenses.

22.  The Government requested the Court not to rule on just satisfaction because the Compensation Commission was now entitled to examine just satisfaction claims in applications where the Court has found a violation of Article 1 of Protocol No. 1 to the Convention but has not ruled on the applicants’ claims for just satisfaction under Article 41 of the Convention or has decided to reserve the question (Kaynar and Others v. Turkey, nos. 21104/06 and 2 others, § 64-78, 7 May 2019).

23. The Court considers that the respondent Government should ensure that the domestic judgments in the appended table, are executed by the administration in full by closing the enforcement proceedings at the bailiff`s offices (İcra Müdürlükleri) which had been initiated by the applicants (Vlaho v. Bosnia and Herzegovina [Committee], no.15676/20, 10 December 2020).

24.  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, in particular the fact that the applicants have already been awarded compensation (see paragraph 10 above), and making its assessment on an equitable basis, the Court awards for each of the applications EUR 2 000 in respect of non‑pecuniary damages.

25.  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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award jointly to the applicants EUR 3 000 covering costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that the applications disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non‑enforcement of domestic decisions;

4.      Holds respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;

5.      Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2 000 (two thousand euros) for each application, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3 000 (three thousand euros) jointly to applicants, plus any tax that may be chargeable to the applicants, 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;

6.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 15 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                     Egidijus Kūris
          Deputy Registrar                                                      President

 

 

Appendix 1 - List of cases

 

No.	Application no.	Case name	Lodged on	Applicant Year of Birth Nationality
1.	25885/19	Tetik and Others v. Turkey	30/04/2019	Hasan TETİK 1955 Turkish Sürahi TETİK 1962 Turkish Binevş TETİK 1983 Turkish Yeliz TETİK 1989 Turkish Zozan TETİK 1993 Turkish Şehriban TETİK 1995 Turkish Fahrettin TETİK 1984 Turkish Siti ÖNER 1978 Turkish Selvi KOYU 1986 Turkish     Nurettin TETİK 1997 Turkish
2.	26026/19	Çiftçi and Others v. Turkey	30/04/2019	Nazime ÇİFTÇİ 1963 Turkish Feride ÇİFTÇİ 1985 Turkish Harun ÇİFTÇİ 1986 Turkish Abdullah ÇİFTÇİ 1987 Turkish Abidin ÇİFTÇİ 1990 Turkish Kamile ÇİFTÇİ YURĞUN 1991 Turkish Muhsin ÇİFTÇİ 1993 Turkish Cemile ÇİFTÇİ 1996 Turkish
3.	26435/19	Ertunç and Others v. Turkey	30/04/2019	Gülüzar ERTUNÇ 1946 Turkish Güler ERTUNÇ 1979 Turkish Nazlı ERTUNÇ HEZER 1987 Turkish Kadriye ERTUNÇ NUYAN 1986 Turkish Abdullah ERTUNÇ 1981 Turkish Abdulsettar ERTUNÇ 1970 Turkish
4.	26485/19	Kömür and Others v. Turkey	30/04/2019	Erdem KÖMÜR 1990 Turkish Nazime KÖMÜR 1967 Turkish Çiğdem KÖMÜR AYTONĞ 1998 Turkish Ümit KÖMÜR 1992 Turkish Tuğba KÖMÜR 1996 Turkish İbrahim KÖMÜR 2000 Turkish
5.	26960/19	Şatır v. Turkey	30/04/2019	Arafat ŞATIR 1957 Turkish
6.	27370/19	Dayan v. Turkey	30/04/2019	Şükrü DAYAN 1965 Turkish
7.	27387/19	Engin v. Turkey	30/04/2019	Abdurrahman ENGİN 1962 Turkish
8.	27390/19	Basmacı v. Turkey	30/04/2019	Adil BASMACı 1965 Turkish
9.	27405/19	Han v. Turkey	30/04/2019	Ali HAN 1948 Turkish
10.	27409/19	Atak v. Turkey	30/04/2019	Mehmet ATAK 1967 Turkish
11.	27415/19	Tinar and Others v. Turkey	19/04/2019	Makbule TİNAR 1957 Turkish Tarık TİNAR 1977 Turkish Kudbettin TİNAR 1981 Turkish Dilek TİNAR 1986 Turkish Nahide TİNAR 1990 Turkish Fazilet YAŞAR 1980 Turkish
12.	27433/19	Taş v. Turkey	30/04/2019	Halit TAŞ 1949 Turkish
13.	27463/19	Akdeniz v. Turkey	30/04/2019	Abdülhalik AKDENİZ 1978 Turkish
14.	27468/19	Noyan v. Turkey	30/04/2019	Cibrail NOYAN 1963 Turkish
15.	27473/19	Dikçe v. Turkey	30/04/2019	Abdulaziz DİKÇE 1960 Turkish
16.	27483/19	Temel v. Turkey	30/04/2019	Mehmet TEMEL 1963 Turkish
17.	27499/19	Atsız v. Turkey	30/04/2019	Muhyettin ATSIZ 1962 Turkish
18.	27505/19	Akdeniz v. Turkey	30/04/2019	Ömer AKDENİZ 1960 Turkish
19.	27509/19	Aykut v. Turkey	30/04/2019	Mehmet Emin AYKUT 1960 Turkish
20.	27519/19	Özer v. Turkey	30/04/2019	Mehmet ÖZER 1963 Turkish
21.	27547/19	Aksu v. Turkey	30/04/2019	Ramazan AKSU 1952 Turkish
22.	27551/19	Adar v. Turkey	30/04/2019	Fikret ADAR 1963 Turkish
23.	27589/19	Milas v. Turkey	30/04/2019	Sıddık MİLAS 1946 Turkish
24.	27602/19	Han v. Turkey	30/04/2019	Hamit HAN 1961 Turkish
25.	27605/19	Tokçu v. Turkey	30/04/2019	Abdulmecit TOKÇU 1963 Turkish
26.	27613/19	Dinler v. Turkey	30/04/2019	Ömer DİNLER 1958 Turkish
27.	27616/19	Bayhan v. Turkey	30/04/2019	Hamit BAYHAN 1957 Turkish
28.	27619/19	Yalçın v. Turkey	30/04/2019	Hamdullah YALÇIN 1966 Turkish
29.	27748/19	Yılmaz v. Turkey	30/04/2019	Hurşit YILMAZ 1957 Turkish
30.	28624/19	Tinar v. Turkey	30/04/2019	Hüseyin TİNAR 1963 Turkish
31.	28628/19	Dikçe v. Turkey	30/04/2019	İsmail DİKÇE 1950 Turkish
32.	29545/19	Ak v. Turkey	30/04/2019	Mehmet AK 1957 Turkish
33.	29570/19	Kaplan v. Turkey	30/04/2019	Ali KAPLAN 1954 Turkish
34.	29894/19	Süre v. Turkey	30/04/2019	Selim SÜRE 1956 Turkish
35.	29899/19	Ayhan v. Turkey	30/04/2019	Bedel AYHAN 1949 Turkish
36.	29907/19	Ergül v. Turkey	30/04/2019	Arafat ERGÜL 1947 Turkish
37.	29911/19	Kurt v. Turkey	30/04/2019	Cemal KURT 1974 Turkish
38.	29924/19	Kaya v. Turkey	30/04/2019	Ramazan KAYA 1964 Turkish

Appendix 2 - Information on the domestic proceedings