SECOND SECTION
DECISION
Application no. 3662/10
Serkan SESİZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 February 2019 as a Committee composed of:
Valeriu Griţco, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 7 January 2010,
Having regard to the declaration submitted by the respondent Government on 12 October 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Serkan Sesiz, is a Turkish national, who was born in 1974 and lives in Istanbul. He was represented before the Court by Mr G. Candoğan, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The part of the application concerning the length of the proceedings and the non-communication of the public prosecutor’s opinion during the proceedings before the Supreme Administrative Court had been communicated to the Government.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. At the time, the applicant worked as a civil servant in Ziraat Bankası, a state-owned bank. Following certain legislative amendments, the authorities started proceedings for the privatisation of Ziraat Bankası, and in 2002 the applicant was assigned to another public institution.
6. In 2004, the applicant asked to be reinstated and his request was rejected. He then initiated proceedings before the Istanbul Administrative Courts. The case was dismissed based on the fact that the applicant had failed to bring his case within the time-limit provided for by law. The court held that the applicant should have initiated proceedings within sixty days following the notification of his assignment to another public institution.
7. On 29 May 2009 the Supreme Administrative Court upheld the judgment of the first instance court. During the appeal proceedings the Chief Public Prosecutor at the Supreme Administrative Court filed his written opinion, which was not communicated to the applicant.
8. In 2009 the Supreme Administrative Court rejected the applicant’s rectification request.
THE COMPLAINTS
9. The applicant complained under Article 6 § 1 of the Convention 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.
10. The applicant stated under Article 6 of the Convention that the length of the proceedings had exceeded the reasonable time-limit.
11. Under the same provision, the applicant also complained about the outcome of the administrative proceedings and stated that the proceedings had not been fair. He further alleged that the Supreme Administrative Court had departed from its previously established practice in his case and in doing so infringed his rights under Article 6 § 1 of the Convention.
THE LAW
A. As to non-communication of the Chief Public Prosecutor’s written opinion
12. After the failure of attempts to reach a friendly settlement, by a letter of 12 October 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
13. The declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant Serkan Sesiz, 400 (four hundred) euros to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned cases pending before the European Court of Human Rights.
This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the cases.
The Government consider that the absence of communication to the applicant of the public prosecutor’s observation submitted to the Supreme Administrative Court breached his right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no.33446102, 27 November 2007). They respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention. The payment will constitute the final resolution of the case.”
14. By a letter of 19 November 2018 the applicant’s lawyer informed the Court that the applicant had agreed to the terms of the Government’s declaration.
15. The Court considers that the applicant’s express agreement to the terms of the declaration made by the Government can be considered as an implied friendly settlement between the parties (see, for example, Bakal and Others v. Turkey (dec.), no. 8243/08, 5 June 2012).
16. The Court therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
17. In view of the above, it is appropriate to strike this part of the application out of the list.
B. As to length of proceedings
18. 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.
19. 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 this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.
20. The Court observes that, 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 v. Turkey ((dec.), no. 4860/09, 26 March 2013), 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.
21. The Court notes that in its judgment 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.
22. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).
23. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. Remaining complaints
24. The applicant raised further complaints under Article 6 of the Convention.
25. Having examined these complaints in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
26. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaint about the non-communication of the Chief Public Prosecutor’s opinion during the proceedings before the Supreme Administrative Court;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 7 March 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy