SECOND SECTION
DECISION
Application no. 37398/05
Kamil Melih TÖRELİ
against Turkey
The European Court of Human Rights (Second Section), sitting on 18 September 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 11 October 2005,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Kamil Melih Töreli, is a Turkish national, who was born in 1948 and lives in Antalya. He was represented before the Court by Mr E. Sansal, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 14 March 1993 the applicant, who is a metallurgical engineer, was appointed by a decree to the position of director general at Asil Çelik Sanayi ve Ticaret A.Ş. (hereinafter “Asil Çelik”), a public company at the material time, which engaged in the production of steel and steel products.
5. On 6 August 1997 the applicant left Asil Çelik to work as a consultant at the Mechanical and Chemical Industry Corporation (Makina ve Kimya Endüstrisi Kurumu- hereinafter “MKEK”), a state-owned enterprise, where he was attached to the Retirement Fund (Emekli Sandığı) governing civil servants.
6. On 13 March 1998, upon finding out that he had not been attached to the Retirement Fund while serving as a director general at Asil Çelik, the applicant lodged an application with the General Directorate of Retirement Fund (hereinafter “the General Directorate”) for the rectification of this error.
7. On 3 April 1998 the applicant was informed by the General Directorate that his request could not be granted as his status at Asil Çelik was governed under the Labour Law, which effectively meant that he was subjected to a different social security scheme regulated by the Social Security Institution (Sosyal Sigortalar Kurumu), covering private and public sector workers employed on a contract.
A. Proceedings concerning the applicable social security scheme
8. The applicant brought an action before the Ankara Administrative Court for the annulment of the administrative decision.
9. On 20 May 1999 the Ankara Administrative Court granted the applicant’s request and annulled the decision of the General Directorate.
10. On 16 February 2001, after attaining the minimum service requirement of twenty-five years for retirement, the applicant retired from his position at MKEK. On 15 March 2001 he started receiving a pension at director general level from the Retirement Fund.
11. On 1 November 2001 the Supreme Administrative Court upheld the Administrative Court’s judgment.
12. On 14 January 2004, after having examined the rectification request of the General Directorate, the Supreme Administrative Court quashed the judgment of the first-instance court, holding that the applicant’s post at Asil Çelik did not satisfy the conditions for affiliation with the Retirement Fund.
13. Following the decision of the Supreme Administrative Court, on 11 May 2004 the General Directorate decided to discontinue the applicant’s retirement pension. After he had been paid the subsequent three months’ pension, the applicant’s pension payments were suspended starting from September 2004.
14. On 15 April 2004 the Ankara Administrative Court complied with the reasoning of the Supreme Administrative Court and dismissed the applicant’s case. On 13 April 2005 the Supreme Administrative Court upheld the judgment of the first-instance court.
15. In the meantime, in 2004 and 2005 the General Directorate sent several letters to the Social Security Institution, requesting information regarding the payments made to it by the applicant, in order to reconfigure his social security status. In the absence of a response from the Social Security Institution, it was considered that the applicant had not fulfilled the minimum service requirement and consequently, his retirement pension was not resumed.
B. Proceedings concerning the suspension of the applicant’s retirement pension
16. In 2004 the applicant initiated a second set of proceedings before the Ankara Administrative Court, this time requesting the annulment of the administrative act suspending his retirement pension. He also claimed the payment of his pension arrears, together with legal interest.
17. On 13 October 2005 the Administrative Court dismissed the applicant’s case, holding that it could not be established whether he had completed the twenty-five years’ service required for retirement.
18. In the meantime, the Social Security Institution provided the required information for the recalculation of the applicant’s pension, which was eventually determined at a lower level than what had been paid to him between 2001 and 2004. On 24 April 2006 his retirement pension was resumed on the basis of the new configuration. The exceeding amount he had been paid previously was deducted from the new pension in monthly instalments. Moreover, he was paid a lump sum for the unpaid pensions, which was calculated on the basis of the new pension.
19. On 23 May 2006 the Supreme Administrative Court quashed the judgment of the Administrative Court. The high court found that the applicant had indeed attained the minimum service requirement and should have been affiliated with the Retirement Fund pursuant to the relevant legislation.
20. On 7 December 2006, in line with the high court’s decision, the Administrative Court held that the discontinuance of the applicant’s pensions had been unlawful. Accordingly, it annulled the administrative act suspending the applicant’s pension payments and ruled that he should be paid his pensions starting from the date of suspension, together with interest running from that date.
21. On 3 May 2007 the applicant was paid the interest for the lump sum he had received previously.
22. On 13 October 2009 the Supreme Administrative Court upheld the judgment. It rejected the administration’s rectification request on 26 March 2012.
COMPLAINT
23. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the temporary discontinuance of his pension payments for approximately two years had amounted to a violation of his property rights.
THE LAW
24. The Government argued that while it was true that the applicant’s pension payments had been discontinued between September 2004 and April 2006 due to the delay in the correspondence concerning the determination of the applicable social security scheme, he had eventually been paid the pension arrears together with interest. They also pointed out that the Ankara Administrative Court had acknowledged the unlawfulness of the suspension of the applicant’s pension payments. Referring to the Court’s Dalban v. Romania judgment ([GC], no. 28114/95, ECHR 1999‑VI), they concluded that the applicant could no longer be considered a victim, in that the violation of his property rights had been implicitly acknowledged by the domestic authorities and had been remedied in accordance with his claims before the domestic courts.
25. The applicant maintained that notwithstanding the lump sum paid to him in 2006, the fact that he could not receive his pension payments for a period of two years had violated his rights under Article 1 of Protocol No. 1.
26. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III, and Dalban, cited above, § 44).
27. In the present case the Court observes that following the suspension of his pension payments, the applicant lodged an action before the Ankara Administrative Court, whereby he requested the annulment of the administrative act discontinuing his payments and claimed the payment of his unpaid pensions together with interest. The Administrative Court accepted his case and annulled the impugned act. It also ruled that the applicant be paid a total amount for the pensions due, as well as legal interest that would start running from the date when the pension payments had been suspended. In that connection, the Court notes that there is nothing in the case file to suggest that the applicant claimed any kind of compensation before the domestic courts. Nor did he question the adequacy of the amount paid for his pension arrears and the interest awarded to him. In these circumstances the Court considers that the domestic authorities complied with the conditions put forward by the Convention’s case-law as they acknowledged in substance the violation of the applicant’s property rights and provided redress in line with his claims (compare Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).
28. Consequently, the Court finds that the applicant cannot claim to be a victim of a violation of Article 1 of Protocol No. 1 to the Convention. It follows that the application is inadmissible 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 11 October 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy