SECOND SECTION
DECISION
Application no. 2379/10
Gülperi BALO
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 March 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 4 January 2010,
Having regard to the decision of 8 February 2011,
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
1. The applicant, Ms Gülperi Balo, is a Turkish national, who was born in 1946 and lives in İzmir. She 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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was the partner of H.T., a civil servant whom she married in a religious ceremony "imam nikahı" in 1959 and with whom she had five children. H.T died on 11 May 1972.
5. On 30 June 2005 the applicant requested the General Directorate of Pension Fund (the Fund) (“Emekli-Sandığı”) to award her a survivor’s pension since her partner’s death. On 12 July 2005 the Fund refused the request.
6. On 25 August 2005 the applicant brought an action before the Ankara Administrative Court seeking the annulment of the Fund’s decision of 12 July 2005.
7. On 21 March 2007 the Ankara Administrative Court dismissed the applicant’s request on the ground that the applicant had not married in accordance with the Civil Code.
8. On 6 November 2009 the Supreme Administrative Court upheld the decision of the Ankara Administrative Court of 21 March 2007. During the appeal proceedings, the Chief Public Prosecutor at the Supreme Administrative Court delivered his written opinion and without raising any substantial new issue regarding the merits of the case, in two short sentences, he invited the court to uphold the impugned decision. This opinion was not notified to the applicant.
B. Relevant domestic law
9. A description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013), and Kılıç and others v. Turkey (dec.), (no. 33162/10, §§ 10-13, 3 December 2013).
COMPLAINTS
10. The applicant complained under Article 6 of the Convention that the length of the proceedings had been excessive.
11. The applicant further complained under Article 6 § 1 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion to her during the appeal proceedings before the Supreme Administrative Court had violated her right to an adversarial and fair hearing.
THE LAW
A. Length of proceedings
12. 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.
13. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as she had not made any application to the Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013).
14. 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.
15. 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.
B. Non-communication of the Chief Public Prosecutor’s written opinion
16. The applicant complained that the non-communication of the Chief Public Prosecutor’s written opinion during the appeal proceedings before the Supreme Administrative Court had violated her right to an adversarial and fair hearing. In this respect, she relied on Article 6 § 1 of the Convention.
17. The Court notes that it has already examined the same issue in the case of Kılıç and others v. Turkey ((dec.), no. 33162/10, §§ 19‑23, 3 December 2013) and considered that the applicants had not suffered a significant disadvantage. Accordingly, it has declared this complaint inadmissible in accordance with Article 35 § 3 (b) of the Convention.
18. Having in particular regard to the content of the written opinion filed by the Chief Public Prosecutor in the proceedings before the Supreme Administrative Court, the Court finds no particular reasons in the present application which would require it to depart from its findings in the aforementioned case.
19. In the light of the foregoing, this complaint is inadmissible and must be rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 5 April 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy