Demiroğlu and Others v. Turkey (dec.)

Information Note on the Court’s case-law No. 164

June 2013

Demiroğlu and Others v. Turkey (dec.) - 56125/10

Decision 4.6.2013 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Non-exhaustion of a new accessible and effective constitutional remedy: inadmissible

Facts – In March 2009 the applicants brought proceedings in the district court against their employer, seeking payment of unpaid salaries and bonuses. In July 2009 the court found in their favour. In October 2009 the judgment became final as no appeal had been lodged on points of law. In November of the same year the applicants applied again to the district court, this time seeking redress in respect of the additional damage established during the first set of proceedings. In a judgment which became final in June 2010 the court granted their request. To date, neither court decision has been executed in spite of the enforcement proceedings instituted by the applicants. In an application lodged with the European Court on 16 August 2010 the applicants complained of the failure to execute the judgments.

Law – Article 35 § 1: In January 2013 the National Assembly had enacted Law no. 6384 on the resolution, by means of compensation, of certain applications lodged with the Court prior to 23 September 2013, including those concerning the non-enforcement or delayed enforcement of judicial decisions. Applications to the compensation commission under that Law had to be lodged within six months from the date of its entry into force or, failing that, within one month from the date of notification of the Court’s decision on inadmissibility. It was therefore open to the applicants to lodge an application for compensation.

As to whether that remedy was sufficient, the commission, which was made up mostly of judges, had to rule on all applications submitted to it within nine months. Individuals could apply to the commission with a view to obtaining a ruling as to the non-enforcement or delayed enforcement of judicial decisions in their favour and receiving just satisfaction to cover the damage sustained. In dealing with applications the commission had to take the case-law of the Strasbourg Court into consideration and give a reasoned decision. The compensation awarded by the commission had to be paid by the Justice Ministry within three months from the date on which the commission’s decision became final. In addition, applications were subject to review by the Ankara Regional Court, the Constitutional Court and ultimately the Strasbourg Court. Lastly, the commission’s decisions, once final, had to be notified to the relevant judicial or administrative authority. If the decision which was the subject of the application to the commission was still unenforced, it had to be enforced swiftly by the authority concerned. The application for compensation put in place by the Turkish legislature was thus designed to remedy complaints concerning non-enforcement or delayed enforcement of judicial decisions, in accordance with the principles established by the Court’s case-law in that sphere. In those circumstances, there was currently no reason to suppose that the remedy introduced by the compensation legislation would not afford the applicants the opportunity to obtain redress in respect of their grievances, or that the remedy would not offer any reasonable prospects of success.

On 31 January 2012 almost 1,200 applications stemming from the same problem were still pending before the Court. The remedy introduced by Law no. 6384 had been created with the aim of dealing with the large numbers of similar repetitive cases against Turkey which posed a growing threat to the Convention system. It formed part of the measures taken following the application of the pilot-judgment procedure in the case of Ümmühan Kaplan*. The respondent State had therefore fulfilled its role within the Convention system by resolving this type of problem at national level. In so doing it had secured to the persons concerned the rights and freedoms defined in the Convention, offering them more rapid redress and at the same time easing the burden on the Court, which would otherwise have had to deal with a large number of applications that were similar in substance. The Court reiterated that its task to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto was not necessarily best achieved by repeating the same findings in large series of cases. Furthermore, taking into consideration the nature of Law no. 6384 and the context in which it had been enacted, there were grounds for departing from the general principle whereby the assessment of whether domestic remedies had been exhausted was carried out with reference to the date on which the application was lodged.

Consequently, in accordance with Article 35 § 1 of the Convention, the applicants had to apply to the compensation commission set up under Law no. 6384 in so far as this appeared on the face of it to be an accessible remedy capable of offering them reasonable prospects of having their grievances redressed.

Conclusion: inadmissible (failure to exhaust domestic remedies).

* Ümmühan Kaplan v. Turkey, 24240/07, 20 March 2012, Information Note 150.

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This summary by the Registry does not bind the Court.

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