Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 26162/11
Levent GÜLMEZOĞLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 17 March 2011,
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, Mr Levent Gülmezoğlu, is a Turkish national, who was born in 1953 and lives in İzmir. He was represented before the Court by Mr S. Cengiz, a lawyer practising in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 12 June 2006, relying on Law no. 5525 of 4 July 2006, granting amnesty to civil servants who had been subjected to disciplinary proceedings, the applicant requested to be reinstated.
5. On 2 August 2006 the administration rejected this request.
6. On 18 September 2006 the applicant initiated administrative proceedings before the İzmir Administrative Court to have that decision annulled.
7. On 7 December 2007 the İzmir Administrative dismissed the applicant’s case.
8. On 27 October 2010 the Supreme Administrative Court upheld the decision of 7 December 2007. During the appeal 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.
COMPLAINTS
9. 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 complained about the length and fairness of the proceedings.
10. Relying on Article 13 of the Convention the applicant further complained that there had been no effective remedy under Turkish law whereby he could have contested the length of the proceedings.
11. The applicant alleged under Article 14 of the Convention that he had been subjected to discrimination.
12. The applicant further alleged under Article 1 of Protocol No. 1 to the Convention that, as a result of the unfair decisions of the domestic courts, his right to peaceful enjoyment of his possessions had been breached.
THE LAW
A. Non-communication of the Public Prosecutor’s written opinion
13. 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.
14. 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 Levent Gülmezoğlu, 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. ”
15. 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”.
16. 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.
17. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (TahsinAcar 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).
18. 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).
19. 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)).
20. 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).
21. 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.
22. 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).
23. In view of the above, it is appropriate to strike this complaint out of the list.
B. Length of proceedings
24. 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.
25. 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 the non-execution of judgments. Referring to the Court’s decision, in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), they maintained that the applicant had not exhaust domestic remedies by applying to the Compensation Commission.
26. 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.
27. 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
28. The applicant raised further complaints under Articles 6, 13, 14 and Article 1 of Protocol No. 1 to the Convention.
29. 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 LediBianku
Deputy Registrar President
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