FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52516/99 
by Muzaffer EKENLER 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr M. Pellonpää
 Mr R. Türmen
 Mrs V. Strážnická
 Mr J. Casadevall
 Mr R. Maruste, 
 Mr S. Pavlovschi, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 16 August 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Muzaffer Ekenler, is a Turkish national who was born in 1951 and lives in Ankara. He was represented before the Court by Mr B. Çiçekli, a lawyer practising in Ankara.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Between 1980 and 1993 the applicant worked as a bus driver in the service of the Ankara Municipality.

In 1993 criminal proceedings were brought against the applicant, his wife and his daughter on charges of theft. The Ankara chief public prosecutor alleged that the applicant had stolen bus tickets and had sold them with the help of his wife and his daughter to a kiosk owner, who sold the tickets in his kiosk and who was charged, along with the applicant and his family, with buying the stolen tickets. Following the institution of the criminal proceedings, the Ankara Municipality terminated the applicant's contract.

On 5 October 1995 the Ankara Magistrates' Court (sulh ceza mahkemesi) rendered its judgment. It held that there was no evidence against the applicant, his wife and his daughter other than the statements of the kiosk owner. It further noted that no evidence concerning the impugned offence had been found in the applicant's house and that this point had been indicated in the search and seizure protocol (arama tutanağı) drafted by the police. The court considered that there was not sufficient and certain evidence against the applicant, his wife and his daughter and that, therefore, they should benefit from the principle of in dubio pro reo. In conclusion, the Magistrates' Court acquitted the applicant, his wife and his daughter and convicted the kiosk owner.

On an unspecified date, the Criminal Division of the Court of Cassation upheld the judgment of 5 October 1995.

On 28 November 1996, subsequent to his acquittal, the applicant brought a case before the Ankara Labour Court (iş mahkemesi) claiming damages from the Ankara Municipality (hereinafter: the defendant) due to the termination of his contract.

On 12 March 1998 the Ankara Labour Court awarded notice and severance compensation (ihbar ve kıdem tazminatı) to the applicant. The court dismissed the applicant's compensation claims for malicious and non-pecuniary damage. The applicant and the defendant appealed.

On 26 May 1998 the Civil Division of the Court of Cassation quashed the Ankara Labour Court's judgment. The Court of Cassation stated the following in its decision:

“The litigant (the applicant) requested compensation from the defendant employer on the grounds that it had unjustly terminated his contract. The Labour Court partially accepted this request. According to the information and the documents contained in the file, the litigant, while working as a driver of the bus belonging to the EGO General Directorate (the Ankara Municipality), collected used bus tickets by not operating the ticket shredder; took the tickets home and sold them with the help of his daughter and wife. His contract was terminated on account of the offence of theft, pursuant to Article 17 § 2 (d) of Labour Code (Law no. 1475) and Article 42 of the additional penal indicator of the collective labour contract.

Following this incident, the litigant was tried by the Ankara Magistrates' Court which acquitted him on the ground that there was insufficient evidence to convict him. This judgment was upheld by the 6th Criminal Chamber of the Court of Cassation.

Having regard to the criminal investigation file and the case file under examination, it was understood that the applicant had sold the tickets by not operating the ticket shredder on his bus. Although the criminal court acquitted the accused, under Article 53 of the Code on Obligations, its judgment acquitting him cannot bind civil courts. In the light of these considerations and having regard to the fact that the defendant administration terminated the litigant's contract in accordance with Article 17 § 2 (d) of Labour Code (Law no. 1475), the Labour Court's judgment awarding notice and severance pay to the litigant should be quashed...”   

On 10 October 1998 the Ankara Labour Court confirmed its judgment of 12 March 1998 awarding compensation to the applicant. With reference to the judgments of the Ankara Magistrates' Court and the Criminal Division of the Court of Cassation which acquitted the applicant of the charges, the court found it established that there was no evidence or information which indicated the applicant's involvement in the alleged offence. In this respect, it considered that the defendant had unjustly terminated the applicant's contract, contrary to the provisions of the labour law. The defendant appealed.

On 11 November 1998 the Grand Chamber of the Civil Division of the Court of Cassation quashed the Ankara Labour Court's judgment. It ruled that the Labour Court should comply with the decision given by the Civil Division of the Court of Cassation.

On 29 December 1998 the Ankara Labour Court, complying with the Grand Chamber's decision, dismissed the applicant's request for damages.

On 3 March 1999 the Civil Division of the Court of Cassation upheld this judgment.

B.  Relevant domestic law

Article 53 of the Code on Obligations provides:

 “The (civil) court is not bound by the provisions of the criminal laws concerning criminal responsibility or by an acquittal by a criminal court in deciding questions of fault or capacity to act.”

Article 17 § 2 (d) of the Labour Code, in force at the material time, provided:

“Under the following circumstances, the employer may denounce labour contracts of both indefinite and definite durations, before the end of their duration or the term of notice:

...

II. Conduct against ethical principles, good faith and etc.

...

d) if the employee commits a dishonest or disloyal act such as breach of trust, theft or disclosure of trade secrets,

...”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached since the national courts failed to award him damages for the unjust termination of his contract by the Ankara Municipality.

The applicant further contends under the same heading that the civil proceedings in question were not concluded within a “reasonable time”.

The applicant complains under Article 6 § 2 of the Convention that his right to presumption of innocence was violated on the ground that the Civil Division of the Court of Cassation had considered him guilty of the alleged offence in refusing his request for damages, despite the fact that he had been acquitted by the Ankara Magistrates' Court.

The applicant alleges a breach of Article 7 of the Convention since the Civil Division of the Court of Cassation held that he was guilty of the offence of which he had been acquitted.

The applicant maintains under Article 14 of the Convention that the outcome of the civil proceedings constituted discrimination against him on the basis of his political opinions.

THE LAW

1. The applicant contends under Article 6 § 1 of the Convention that the domestic civil courts did not apply the domestic law correctly and that their decisions holding him responsible were arbitrary. The relevant parts of Article 6 § 1 provide as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submit that there was no arbitrariness in the proceedings. They contend that the Civil Division of the Court of Cassation examined and decided the dispute exclusively within the framework of labour law. They maintain that dismissal of an employee from a post on the grounds listed in Article 17 § 2 (d) of the Labour Code is possible even if the act of the employee does not constitute a criminal offence.

The applicant maintains that the Civil Division of the Court of Cassation interpreted Article 17 of the Labour Code wrongly and decided against him despite the fact that he had not been convicted of the charges against him. In this connection, he submits that although a civil court is not bound by the judgments of the criminal courts under Turkish law, it was never proven that he had committed theft. Accordingly, Article 17 of the Labour Code should not have applied in his case. He submits that the Court of Cassation did not take into consideration the facts and the evidence adduced before the criminal courts. He maintains that in the circumstances of the case, the employer could still have terminated the contract under Article 13 of the Labour Code by paying compensation.

The Court reiterates that under Article 19 of the Convention its sole task is to ensure observance of the engagements undertaken by the High Contracting Parties under the Convention. It is not competent to examine applications concerning errors of law or fact allegedly committed by the national authorities unless and in so far as they may have infringed rights and freedoms protected by the Convention. The establishment of the facts and the interpretation and application of domestic law belong, in the first place, to the national authorities (see, among other authorities, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

In the instant case, the Court notes that the applicant's complaint concerns the refusal of the national courts to award him damages for unjust termination of his contract. The Turkish courts held that the applicant's employer was right in its decision to terminate his contract since the applicant's act in question was incompatible with the terms of his contract and, on that account, he should not be awarded damages.

The Court reiterates in this connection that there is no right as such to an award of damages under Article 6 § 1. The issue is whether the applicant received a fair hearing of his claim to be entitled to damages. The Court finds no evidence or basis on which to conclude that the national courts, in evaluating the facts or interpreting the domestic law, acted in an arbitrary or unreasonable manner. Therefore, there is no appearance of a violation of the applicant's right under Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further submits that the proceedings in issue contravened the reasonable time requirement as they lasted two years and four months. He relies on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government maintain that the duration of the proceedings was reasonable. They aver that, in order to decide, the first-instance court had to request the criminal case-file from the Ankara Magistrates' Court, apply to experts and examine witnesses. They further submit that the applicant's case involved several instances which lasted less than one year.

The applicant contends that the proceedings in question should not have lasted more than ten months having regard to the nature of the dispute.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among other authorities, Sekin and Others v. Turkey, no. 26518/95, § 35, 22 January 2004).

In the instant case, the period to be taken into consideration in determining whether the proceedings satisfied the “reasonable length” requirement laid down by Article 6 § 1 began on 28 November 1996 when the applicant filed his case with the Ankara Labour Court and ended at the end of March 1999 when the Civil Division of the Court of Cassation's decision upholding the latest judgment of the Ankara Labour Court was served on the applicant. Thus, the period under consideration is approximately two years and four months before six instances.

Examining the overall duration of the proceedings - a period which does not seem prima facie unduly long in the light of the case-law of the Convention organs -, as well as the complexity of the case and the fact that the case was examined before six instances, and taking also into account that no substantial periods of inactivity were attributable to the State authorities, the Court considers that the length of the proceedings does not disclose any appearance of a violation of Article 6 § 1 of the Convention (see, Mariniello v. Italy (dec.), no. 36012/97, 28 September 1999).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant submits that by rejecting his compensation claim, with reasoning which contained a judgment of criminal guilt, the Civil Division of the Court of Cassation violated his rights enshrined in Articles 6 § 2 and  Article 7 of the Convention. The relevant parts of Articles 6 § 2 and 7 read as follows:

Article 6 § 2 of the Convention

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 7 of the Convention

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government maintain that the decisions of the Court of Cassation did not concern the applicant's criminal responsibility. Nor did they result in his conviction. In this connection, they submit that the present case is different from the Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A).  They contend that the domestic proceedings in the Sekanina case were both criminal proceedings whereas the present application concerned both civil and criminal proceedings. They further aver that Mr Sekanina had applied to the domestic courts in order to receive compensation for detention, whereas the proceedings in the instant case concerned a labour dispute.

The applicant submits that the civil courts voiced suspicions regarding his innocence in spite of his acquittal of the alleged offence by holding that there was sufficient evidence to conclude that he had been involved in the alleged offence. He emphasises that the reason for his acquittal was the absence of sufficient evidence against him and that it was not established by the criminal courts that he had sold the bus tickets in issue. He submits that, against this background, there was an assumption of guilt on his part by the Civil Division of the Court of Cassation in its consideration of his compensation claim.

a) As far as the applicant's allegations concern Article 6 § 2 of the Convention, the Court will examine this complaint in the light of the principles enunciated in its judgment in Ringvold v. Norway (no. 34964/97, ECHR 2003-II) and decision in Lundkvist v. Sweden (no. 48518/99, ECHR 2003-XI) and its application of those principles in those cases. It will examine whether the compensation proceedings in his case gave rise to a “criminal charge” against him and, if not, whether the compensation case was nevertheless linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2 of the Convention.

Turning to the first of the criteria for establishing whether there was a “criminal charge”, namely the classification of the proceedings under national law, the Court notes that the subject-matter of the proceedings pertained to a labour dispute between the applicant and the Ankara Municipality. The dispute was dealt with according to the rules of labour law and the rules governing the conduct of civil proceedings. Thus, the rejection of the applicant's compensation claim was clearly not viewed as a “criminal charge” under the relevant domestic law.

As regards the second and the third criteria, the nature of the proceedings and the type and severity of the “penalty”, the Court observes that while the conditions for civil liability could in certain respects overlap, depending on the circumstances, with those for criminal liability, the civil claim was nevertheless to be determined on the basis of the principles that were proper to labour law. The outcome of the criminal proceedings was not decisive for the compensation one. Furthermore, the compensation issue was to be subject of a separate legal assessment based on criteria and evidentiary standards which differed from those applicable to criminal liability. This is borne out by the circumstances of the present case, where the question of notice and severance compensation was the sole issue to be determined in the case and where that issue was to be decided by a labour court in the context of the rules governing the conduct of civil proceedings.

The Court further considers that, although formulated with particular regard to the situation of a compensation claim by an individual victim, the following considerations relied on in the Ringvold judgment (§ 38, see also the Lundkvist decision, cited above) are relevant to the compensation claim in this case:

“[T]he fact that an act that may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence could not, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being 'charged with a criminal offence'. Nor could the fact that evidence from the criminal trial is used to determine the civil law consequences of the act warrant such a characterisation. Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim's possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to court under Article 6 § 1 of the Convention. This again could give an acquitted perpetrator, who would be deemed responsible according to the civil burden of proof, the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude establishing civil liability in relation to the same facts.

Thus, the Court considers that, while the acquittal from criminal liability ought to be maintained in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v. Austria, no. 9295/81, Commission decision of 6 October 1982, Decisions and Reports (D.R.) 30, p. 227; M.C. v. the United Kingdom, no. 11882/85, decision of 7 October 1987, D.R. 54, p. 162). If the national decision on compensation were to contain a statement imputing the criminal liability of the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention.”

In the instant case, the impugned decision of the Court of Cassation on the compensation claim, a separate decision from the acquittal, did not state either expressly or in substance, that all the conditions were fulfilled for holding the applicant “criminally liable” with respect to the charges of which he had been acquitted. The civil proceedings were not incompatible with, and did not “set aside”, that acquittal.

In view of the foregoing considerations, the Court does not find that the outcome of the compensation proceedings amounted to the bringing of another “criminal charge” against the applicant.

As to the further question of whether there were links between the criminal case and the subsequent compensation case such as to justify extending the scope of the application of Article 6 § 2 of the Convention to the latter, the Court reiterates that the outcome of the criminal proceedings was not decisive for the dispute concerning the compensation: despite the applicant's acquittal it was legally feasible under Turkish law to deny him notice and severance compensation. Therefore, the proceedings before the labour court were not a consequence and the concomitant of the criminal proceedings.

In sum, the Court concludes that Article 6 § 2 was inapplicable to the proceedings relating to the labour dispute between the applicant and his former employer.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) So far as the applicant's allegations concern Article 7, the Court reiterates that Article 7 § 1 embodies the principle that only the law can define a crime and prescribe a penalty and prohibits the retrospective application of the criminal law (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260, p. 22, § 52). The Court considers that the decisions of the Civil Division of the Court of Cassation did not amount to a finding of guilt of a “criminal offence” for the purpose of Article 7.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complains that the refusal of the domestic courts to grant him compensation for the unjust termination of his contract constituted discrimination on the basis of his political opinions. He invokes Article 14 of the Convention, which reads as follows:

“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.”

The Government maintain that the reason for the termination of the applicant's contract with the Municipality was his acts which were contrary to the principles of loyalty and honesty as prescribed by Article 17 § 2 (d) of the Labour Code. They further contend that the legal provision in question applies to all employees without any distinction.

The applicant submits that he was discriminated against on the ground of his political opinion. In this connection, he contends that a witness testified before the Ankara Labour Court that the applicant had worked for a trade union and that he had been blamed as a result of his involvement in the trade union activities.

  The Court observes that the applicant has not submitted any evidence in support of his allegation under Article 14 of the Convention. The Court is of the opinion that the applicant has failed to substantiate his allegation and to lay the basis of an arguable claim of a breach of Article 14.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

EKENLER v. TURKEY DECISION


EKENLER v. TURKEY DECISION