ERDEM v. TURKEY - 25014/10 (Judgment : Article 6 - Right to a fair trial : Second Section Committee) [2018] ECHR 581 (10 July 2018)

JUDGMENT STRASBOURG 10 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Erdem v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ledi Bianku, President, Nebojša Vučinić, Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 19 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25014/10 ) 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, Mr Nurettin Erdem ("the applicant"), on 29 April 2010. 2. The applicant was represented by Mr S. Cengiz, a lawyer practising in İzmir. The Turkish Government ("the Government") were represented by their Agent. 3. On 21 March 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1959 and lives in İzmir. 5. In March 2002, the applicant, who was a working as a civil servant, was dismissed due gross misconduct. He applied to the administrative courts to have the annulment of that decision. In the course of the proceedings, on 4 July 2006 Law no. 5525, granting amnesty to civil servants who had been subjected to disciplinary proceedings, entered into force. Accordingly, in the light of this new amnesty law, on 10 April 2009 the Supreme Administrative Court decided that there was no need to examine the merits of the case. 6. In the meantime, on 30 September 2005 the criminal proceedings initiated against the applicant had ended with the decision of the criminal court, convicting him of abuse of office. 7. Following the entry into force of the amnesty law, the applicant applied to the administration and asked to be reinstated. His request was refused on 19 December 2006. The applicant initiated proceedings to have the annulment of that decision. 8. By a decision dated 8 January 2008, the Ankara Administrative Court found in line with the applicant's claims and decided to annul the decision of the authorities by which they had refused to reinstate the applicant. 9. Following appeal, the case was transferred before the Supreme Administrative Court. In the course of the proceedings, the Chief Public Prosecutor at the Supreme Administrative Court filed his written opinion. This opinion included substantial grounds on the merits of the case with a proposal to quash the decision of the first instance court. On 25 May 2009, relying also on the opinion of the Chief Public Prosecutor, the Supreme Administrative Court quashed the decision of 8 January 2008. In particular, the appeal court referred to its previous leading case which had been delivered on 17 October 2008 on a similar case and held that the amnesty law did not put an obligation on the administration to reinstate the applicant. 10. The case was accordingly remitted before the Ankara Administrative Court. On 9 October 2009 the first instance court adhered to the judgment of the appeal court and dismissed the applicant's case. This decision was served on the applicant on 13 November 2009. II. RELEVANT DOMESTIC LAW AND PRACTICE 11. The description of relevant domestic law may be found in Meral v. Turkey , (no. 33446/02 , §, 27 November 2007), and Turgut and others v. Turkey ((dec.), no. 4860/09 , §§ 19-26, 26 March 2013). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. Non-communication of the Chief Public Prosecutor's opinion 12. The applicant complained under Article 6 § 1 of the Convention that the non-communication of the written opinion of the Chief Public Prosecutor had breached his right to adversarial proceedings. 13. The Government contested that argument and alleged that the applicant had suffered no significant disadvantage. 14. The Court notes that this part of 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. 15. The Court has already examined a similar complaint in the case of Meral v. Turkey (no. 33446/02 , §§ 32-39, 27 November 2007) and found a violation of Article 6 § 1 of the Convention. It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. In particular, the Court has had regard to the fact that in the present case, the public prosecutor's opinion was substantial and included comments on the merits of the case (see a contrario , Kılıç and others v. Turkey ((dec.), no. 33162/10 , §§ 19-32, 3 December 2013). 16. In view of the foregoing, the Court holds that there has been a violation of Article 6 § 1 of the Convention. B. Length of proceedings 17. 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. 18. The Court notes that 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) to deal with, inter alia, applications concerning the length of proceedings that were lodged with the Court. Subsequently, in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09 , 26 March 2013), this remedy was considered to be a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings and the case was declared inadmissible on account of the applicants' failure to resort to that new remedy. 19. Turning to the facts before it, the Court considers that there are no particular circumstances in the instant case preventing the applicant from using that new remedy in relation to his complaint. 20. It therefore concludes that is part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. Lastly, the applicant complained under Articles 6, 13, 14 and Article 1 of Protocol No. 1 to the Convention. 22. In the light of all the material in its possession and in so far as the matter complained of is 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. He also requested EUR 2,812.5 for legal fees and EUR 30 for costs and expenses. In this connection, the applicant stated that his lawyer had carried out eighteen hours and forty five minutes' legal work. 24. The Government contested the claims. 25. As to non-pecuniary damage, the Court, having regard to all the elements before it, considers that the finding of a violation of Article 6 § 1 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant. As to costs and expenses, 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, the Court awards EUR 500 to the applicant for his costs and expenses 26. 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 complaints concerning the non-communication of the public prosecutor's opinion admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, 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 amount 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 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Ledi Bianku Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII