(Application no. 7089/07)
20 December 2011
This judgment is final but it may be subject to
In the case of Mecit Bozkurt v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Isabelle Berro-Lefèvre, President,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 7089/07) 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 Mecit Bozkurt (“the applicant”), on 23 January 2007.
2. The applicant was represented by Mr R. Erkuş, a lawyer practising in Gaziantep. The Turkish Government (“the Government”) were represented by their Agent.
3. On 4 September 2009 the President of the Second Section decided to give notice of the application to the Government.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1964 and lives in Kilis.
5. At the time of the events, the applicant was a registrar at the Gaziantep Tax Court.
6. By a decision of the Ministry of Justice dated 5 November 2000, the applicant was appointed to the Hatay Tax Court, relying on the negative report prepared by the Justice Inspector concerning certain allegations against him.
7. On 23 November 2000 the applicant brought proceedings before the Gaziantep Administrative Court for the annulment of his appointment to a new post in Hatay.
8. On 13 June 2001 the court dismissed the applicant’s case.
9. On 17 June 2005 the Supreme Administrative Court quashed the judgment of 13 June 2001.
10. On 10 April 2006 the Supreme Administrative Court dismissed a request by the Ministry of Justice for rectification of the judgment.
11. On 11 July 2006 the first-instance court once again dismissed the applicant’s annulment case.
12. On 25 February 2010 the Supreme Administrative Court upheld the judgment of 11 July 2006.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
13. 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, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
14. The Government contested that argument claiming that the applicant had failed to exhaust the domestic proceedings as the proceedings were still pending before the domestic courts at the time of the application. They further contended that the impugned proceedings could not be considered to have been excessively long in view of the complexity of the case. They concluded therefore that there had been no delay in the proceedings that may be attributable to the State.
15. The Court notes that the administrative proceedings were terminated on 25 February 2010. Even assuming that they have been pending, according to its case-law, complaints concerning the length of proceedings can be brought before it prior to the final termination of the proceedings in question (see Plaksin v. Russia, no. 14949/02, §§ 34-35, 30 April 2004). Accordingly, the Government’s objection regarding non-exhaustion must be dismissed.
16. The Court notes that this complaint 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.
17. The period to be taken into consideration began on 23 November 2000 and has ended on 25 February 2010. It has thus lasted approximately nine years and three months for two levels of jurisdiction.
18. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender v. France [GC], no. 30979/96, §§ 42-46, ECHR 2000-VII, and Daneshpayeh v. Turkey, no. 21086/04, §§ 26-29, 16 July 2009)
19. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
20. The applicant maintained under Article 8 of the Convention that his appointment to the new post -which had compelled him to move to another city- as well as alleged unfounded accusations against him, had interfered with his right to respect for family life. He further claimed that financial consequences arising from his appointment, such as transportation and accommodation costs, had amounted to a violation of his rights under Article 1 of the Protocol No. 1 to the Convention
21. In the light of all the material in its possession, the Court finds that the above submissions by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see Soysal and Others v. Turkey, nos. 54461/00, 54579/00, and 55922/00, § 45, 15 February 2007). It follows that these complaints must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
23. The applicant claimed 24,449 euros (EUR) in respect of pecuniary damage referring mainly to the transportation and accommodation costs he had made to see his family. He also claimed EUR 50,000 in respect of non-pecuniary damage for the distress caused due to his appointment to a post in another city.
24. The Government contested these claims as being excessive.
25. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 4,800 under that head.
B. Costs and expenses
26. The applicant also claimed EUR 500 for court fees, EUR 500 for legal costs and expenses incurred before the domestic courts and EUR 5,000 in respect of lawyer’s fee. In support of his claims, the applicant’s lawyer submitted a document, stating that EUR 2,000 had been paid to him as lawyer’s fee in relation to the application to the Court. It was also noted that depending on the success of the case, the lawyer would receive a supplementary amount between EUR 3,000 and EUR 5,000. This document bears the signature of only the applicant’s lawyer.
27. The Government contested these claims.
28. The Court reiterates that 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 were reasonable as to quantum. In the present case, the Court considers that the applicant has not substantiated that he has actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. In this regard, the document in question, which was signed only by the lawyer, does not suffice to conclude that these expenses have been actually incurred. Accordingly, the Court makes no award under this head.
C. Default interest
29. The Court considers it appropriate that the default interest 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months 4,800 (four thousand eight hundred) euros, to be converted into Turkish liras at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle
Deputy Registrar President
MECİT BOZKURT v. TURKEY JUDGMENT
MECİT BOZKURT v. TURKEY JUDGMENT