Published on 18 December 2023
SECOND SECTION
Application no. 43545/20
Ömer Faruk PALA against Türkiye
and 2 other applications
(see list appended)
communicated on 27 November 2023
SUBJECT MATTER OF THE CASE
The applicants are civil servants who have succeeded in an exam to advance to the post of labour auditor. As their requests to be appointed to that post have been implicitly rejected by the administrative authorities, they brought proceedings before administrative courts seeking the annulment of the administration’s implicit rejection and compensation corresponding to the difference in salary between their current post and the post of labour auditor, to be calculated from the date when their advancement became due.
On the dates specified in the Appendix, the administrative courts considered the prolonged inactivity of the administrative authorities in the appointment of the applicants to be unlawful. The courts further ordered the administration to pay the applicants, with interest, the difference in salary between their current and prospective posts as well as other pecuniary elements effective from the date when their appointments would be made and calculated retroactively from the date when they made a request with the administrative authorities for their appointments. The applicants unsuccessfully appealed against the first-instance courts’ decision before appellate courts, complaining of conflicting conclusions reached by the administrative courts in identical cases with respect to the date from which the difference in salary and other pecuniary elements were to be calculated. They submitted in that connection that the Supreme Administrative Court had held in other cases brought by assistant auditors that the salary difference would be calculated from the date when their advancement became due and not from the date of their administrative request.
Notwithstanding the administrative court decisions in their favour, the applicants were not appointed to the posts in question within the 30-day time-limit set out in the law for the enforcement of administrative court decisions. Therefore, they brought individual applications before the Constitutional Court, complaining, inter alia, about the non-enforcement of court decisions in their favour and the alleged inconsistency in the case-law of the administrative courts.
On various dates the Constitutional Court declared the applicants’ applications inadmissible finding their complaints under Article 6 § 1 of the Convention to be manifestly ill-founded and those under Article 1 of Protocol No. 1 to be incompatible ratione materiae with the provisions of the Convention.
The applicants were appointed to the post of labour auditor on 23 June 2021.
On 17 February 2023 the applicants informed the Court that the Constitutional Court had delivered a leading decision on 3 February 2023 finding that the administrative courts had given conflicting decisions regarding the date from which the difference in salary and other pecuniary elements were to be calculated in the cases of labour auditors awaiting appointment and that this state of affairs had run counter to the principle of legal certainty and resulted in a violation of Article 1 of Protocol No. 1 to the Convention. The Constitutional Court ordered the reopening of the proceedings for the claimants concerned by its decision.
The applicants complain under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 that the proceedings brought by them in order to be appointed to the post of labour auditors were unfair in so far as they were discriminated against in comparison with other persons in their situation because of the conflicting case-law on the issue and that they have been wrongfully deprived of their right to salary difference and allowances.
The applicant in application no. 50430/20 further complains under Article 6 of the Convention about the delayed enforcement of the administrative court decision in his favour.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as similar actions before the domestic courts had different outcomes with respect to the date to be taken into account for the calculation of a salary difference? In particular, was the principle of legal certainty, as developed in the Court’s case-law in the interpretation of Article 6 of the Convention (see, for instance, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016; Hayati Çelebi and Others v. Turkey, no. 582/05, § 52, 9 February 2016; and Petrescu and Others v. Romania (dec.), no. 31390/18 and 9 others, §§ 54-55, 7 March 2023), complied with by the domestic courts?
2. Has the inconsistent approach taken by the domestic courts in the applicants’ cases, as opposed to other similar cases, constituted an infringement of the applicants’ right to the peaceful enjoyment of their possessions protected by Article 1 of Protocol No. 1 to the Convention, in particular of their alleged right to obtain the salary difference and other pecuniary elements effective from the date when their advancement to the post of labour auditor became due (see, mutatis mutandis, Ştefănică and Others v. Romania, no. 38155/02, §§ 41-42, 2 November 2010, and Brezovec v. Croatia, no. 13488/07, §§ 66-68, 29 March 2011)?
3. As regards application no. 50430/20, has there been a violation of Article 6 § 1 of the Convention on account of lengthy enforcement of the administrative court decision in that applicant’s favour (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III)?
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Represented by
Date of announcement of exam results for the labour auditor post
Date of administrative request
Date of final administrative court decision
1.
43545/20
Pala v. Türkiye
29/09/2020
Ömer Faruk PALA
1984
Ankara
Özge TEKE
06/08/2014
01/02/2018
13/02/2019
2.
50430/20
Yaşar v. Türkiye
09/11/2020
Sadi YAŞAR
1986
Istanbul
Özge TEKE
24/04/2017
17/08/2018
20/09/2019
3.
11506/22
Ünal v. Türkiye
25/02/2022
Özgün ÜNAL
1980
Ankara
Özge TEKE
06/08/2014
24/09/2018
28/12/2020
Full & Egal Universal Law Academy