Communicated on 15 January 2021
Published on 1 February 2021
SECOND SECTION
Application no. 22339/20
Sami SAYIN against Turkey
and 5 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
The applicants are civil servants employed as assistant labour auditors and they have succeeded in an exam to advance to the post of labour auditor. Because 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 those posts within the 30-day time-limit set out in the law for the enforcement of administrative court decisions; and as a result, they brought individual applications before the Constitutional Court, complaining, inter alia, about the non-enforcement of the decisions concerning their appointment and the alleged inconsistency in the case-law of administrative courts.
On 4 December 2019 the Constitutional Court joined the applications and declared them inadmissible on the grounds that the complaint had been premature, that is to say, it had been only less than a year that the court decisions remained unenforced. The Constitutional Court did not however examine the applicants’ other complaint about the alleged inconsistency of the case-law in respect of the date of calculation for the salary difference.
The applicants complain under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the decisions in their favour and under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non-enforcement issue.
Under Article 6 § 1 and 14 of the Convention the applicants also complain about the conflicting administrative court decisions on the matter delivered by the appellate courts, which ran counter to the principle of legal certainty.
QUESTIONS TO THE PARTIES
1. Have the decisions of the administrative courts in the applicants’ favour been enforced fully and in good time? If not, has there been a violation of Article 6 § 1 of the Convention (see Taşkın and Others v. Turkey, no. 46117/99, §§ 127-138, ECHR 2004‑X, and Okyay and Others v. Turkey, no. 36220/97, §§ 70-75, ECHR 2005‑VII)?
2. Did the applicants have an effective remedy in respect of their non-enforcement complaint (see, for instance, Sharxhi and Others v. Albania, no. 10613/16, § 84, 11 January 2018)?
3. 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 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, and Hayati Çelebi and Others v. Turkey, no. 582/05, § 52, 9 February 2016), complied with by the domestic courts?
4. In view of the circumstances of the cases, did the applicants’ entitlement to the difference in salary between the current and prospective post and other pecuniary elements amount to possessions within the meaning of Article 1 of Protocol No. 1 to the Convention (see, generally, Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-47, ECHR 2004‑IX)? If so, has there been violation of that provision on account of the applicants’ non-appointment to those posts and hence the non-payment of those entitlements despite the domestic court rulings?
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of Birth
Place of Residence
Represented by
Date of announcement of exam results for the labour auditor post
Date of Administrative Request
Date of the Administrative Court decision that is unenforced
1
22339/20
04/06/2020
Sami SAYIN
18/03/1987
Istanbul
Özge TEKE
06/08/2014
27/12/2017
25/12/2018
2
22345/20
04/06/2020
Ebru ŞEN
30/09/1988
İzmir
Özge TEKE
24/04/2017
04/01/2018
25/12/2018
3
22349/20
04/06/2020
Gül DEMİR
13/11/1981
İzmir
Özge TEKE
06/08/2014
24/01/2018
25/12/2018
4
22354/20
04/06/2020
İsa Adalet ÖNAL
17/09/1985
Istanbul
Özge TEKE
06/08/2014
29/12/2017
25/12/2018
5
22466/20
04/06/2020
Nurhan ARIK AŞCI
15/06/1982
Ankara
Özge TEKE
06/08/2014
04/04/2018
13/12/2018
6
22601/20
04/06/2020
Serhat TAŞDELEN
05/03/1985
Istanbul
Özge TEKE
06/08/2014
28/12/2017
31/10/2018
Full & Egal Universal Law Academy