SECOND SECTION
DECISION
Application no. 28582/05
Mustafa DİVRİK
against Turkey
The European Court of Human Rights (Second Section), sitting on 17 October 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 3 August 2005,
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, Mr Mustafa Divrik, is a Turkish national, who was born in 1961 and lives in Izmir. He 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. At the time of the events, the applicant was a public prosecutor. In 1991, he was appointed to Silvan, a district of Diyarbakır. In 1993, he obtained two medical reports, indicating that he was suffering from depression. The applicant was then appointed to Trabzon and later to Ordu. On 16 June 1993 and 14 January 1994, the applicant was further examined by doctors at the Forensic Medicine Institute. The doctors concluded that the applicant suffered from a paranoid syndrome. In a report dated 19 January 1994, the Forensic Medicine Institute issued a report stating that the applicant was unfit to work. Consequently, on 21 November 1994 the applicant was dismissed from his post.
5. On 9 December 1999 the applicant was once again examined by the psychiatry service of the İzmir University Hospital. The report indicated that the applicant was still unfit to work.
6. On 28 December 1999 the applicant applied to the Retirement Fund and asked to benefit from a disability pension. In this respect, he alleged that he was suffering from a mental disorder as a result of the terror incidents in the Silvan area, where he had worked as a public prosecutor.
7. On 13 April 2000 the Retirement Fund rejected the applicant’s request, indicating that the applicant’s allegations were baseless. In this connection, they relied on police reports which contradicted the applicant’s submissions by stating that the terror incidents referred to by the applicant had not taken place and that he was making false accusations.
8. On 14 June 2000 the applicant initiated proceedings before the Ankara Administrative Court to obtain the annulment of the Fund’s decision dated 13 April 2000.
9. On 28 February 2001 the Ankara Administrative Court dismissed the applicant’s request. In its decision, taking into account the medical reports and the police report, the court found it established that the applicant’s mental condition was not work-related, which was a condition to benefit from a disability pension. The court therefore concluded that the applicant was not entitled to receive a disability pension.
10. On 6 October 2004 the Supreme Administrative Court, upholding the Ankara Administrative Court’s reasoning and assessment of the evidence, dismissed the applicant’s appeal. During the appeal proceedings, the Chief Public Prosecutor at the Supreme Administrative Court filed a written opinion on the case without putting forward any new arguments. He simply invited the court to uphold the impugned decision. This opinion was not communicated to the applicant.
11. This final decision was served on the applicant on 8 February 2005.
B. Relevant domestic law
12. The 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
13. The applicant complained under Article 6 of the Convention about the excessive length of the proceedings and the non-communication of the Chief Public Prosecutor’s written opinion during the appeal proceedings before the Supreme Administrative Court.
14. The applicant raised several other complaints under Article 6 of the Convention, alleging that he did not have a fair trial. In this respect, he argued that the domestic courts had failed in the evaluation of the case, that the Supreme Administrative Court had not given adequate reasoning for rejecting his appeal and that the administrative courts had delivered their decisions on the basis of the case file, without holding a hearing.
15. The applicant further stated under Article 13 of the Convention that he had no effective remedy in respect of his complaints.
16. Finally, the applicant stated that the refusal of the authorities to grant him a disability benefit had breached his rights under Article 1 of Protocol No. 1 to the Convention.
THE LAW
A. Length of proceedings
17. The applicant complained that the length of the proceedings had not been compatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
18. The Government noted that pursuant to Law no. 6384 a 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 they 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).
19. 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.
20. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
21. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure 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 the complaint of the excessive length of the civil proceedings 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
22. 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 his right to an adversarial and fair hearing. In this respect, he relied on Article 6 § 1 of the Convention.
23. 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). It considered that the applicants had not suffered a significant disadvantage. Accordingly, it declared that complaint inadmissible in accordance with Article 35 § 3 (b) of the Convention.
24. 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 case which would require it to depart from its findings in the aforementioned case.
25. 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.
C. Other complaints
26. The applicant raised further complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
27. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
28. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 November 2017.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy