Last Updated on July 3, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 6012/07
Rasim ÖZER
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 2 February 2007,
Having regard to the declaration submitted by the respondent Government on 22 January 2018 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, MrRasimÖzer, is a Turkish national, who was born in 1977 and lives in İstanbul. He was represented before the Court by Mr A. Arslan, a lawyer practising in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarized as follows.
4. Following a dispute regarding his appointment as a civil servant, the applicant initiated administrative proceedings before the Ankara Administrative Court seeking the annulment of an administrative decision.
5. On 5 February 1998 the Ankara Administrative Court found in line with the applicant’s request.
6. On 30 November 2000 the Supreme Administrative Court quashed the decision of 5 February 1998.
7. On 8 May 2002 the Ankara Administrative Court dismissed the applicant’s case.
8. On 29 November 2004 the Supreme Administrative Court upheld that decision.
9. During the proceedings, the Chief Public Prosecutor at the Supreme Administrative Court delivered her opinion on the merits of the case. This opinion was not communicated to the applicant.
10. On 12 July 2006 the applicant’s rectification request was rejected.
COMPLAINTS
11. The applicant complained under Article 6 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion in the appeal proceedings before the Supreme Administrative Court had violated his right to an adversarial and fair hearing. Under the same heading, the applicant contested that the length of proceedings had been unreasonable.
12. Relying on Article 6, the applicant further complained about the fairness of the administrative proceedings, stated that his case had not been heard by an independent and impartial tribunal and that the opinion of the Judge Rapporteur had not been communicated to him.
13. The applicant also stated under article 14 of the Convention that he had been subjected to discrimination as a result of the decisions of the administrative authorities.
14. Finally, under Article 1 of Protocol No. 1 to the Convention the applicant stated that as a result of the unfair domestic courts decisions, his right to peaceful enjoyment of his possessions had been breached.
THE LAW
A. Non-communication of the Public Prosecutor’s written opinion
15. The applicant complained under Article 6 § 1 of the Convention that the non-communication of the Public Prosecutor’s written opinion in the proceedings before the Supreme Administrative Court had violated his right to an adversarial and fair hearing.
16. After the failure of attempts to reach a friendly settlement, by a letter of 22 January 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant RasimÖzer, EUR 400 (four hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.
This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government consider that the absence of communication to the applicant of the public prosecutor’s observation submitted to the Supreme Administrative Court breached his right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no.33446/02, 27 November 2007). They respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention. ”
17. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
18. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
19. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
20. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about non‑communication of the public prosecutor’s written opinion during proceedings to applicants (see, for example,Meral v. Turkey (no. 33446/02, §§ 32-39, 27 November 2007).
21. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
22. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
23. The Court considers that this amount should be converted into currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
24. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
25. In view of the above, it is appropriate to strike this complaint out of the list.
B. Length of proceedings
26. 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.
27. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and non-execution of judgments. Referring to the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), they maintained that the applicant should apply to the Compensation Commission.
28. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others, cited above, the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
29. Accordingly, taking account of the Government’s preliminary objection with regard to the obligation of the applicant to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Remaining complaints
30. The applicant raised further complaints under Articles 6, 14 and Article 1 of Protocol No. 1 to the Convention.
31. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 12 July 2018.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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