SECOND SECTION
DECISION
Application no. 27737/20
Tuğba TUNA ÇOLAK against Türkiye
and 3 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 8 November 2022 as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Jovan Ilievski, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table, by the applicants listed therein (“the applicants”), who were represented by Ms Ö. Teke, a lawyer practising in Ankara;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applications mainly concern a delay in the enforcement of final court decisions.
2. The applicants are civil servants. At the time of the events giving rise to the present applications they had succeeded in an exam to advance to the post of labour auditor. Following the implicit rejection of the administration of the applicants’ request to be appointed to those posts, the applicants brought proceedings before the administrative courts seeking their appointment as well as 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.
3. 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’ decisions 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 similar to the applicants, that the salary difference would be calculated from the date when their advancement to the post of labour auditor became due, that is to say when the exam results were announced, and not from the date of their administrative request.
4. Notwithstanding the administrative court decisions at first instance in their favour, the applicants were not appointed to the posts of labour auditor 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.
5. While their applications before the Constitutional Court were pending, the applicants were finally appointed to the post of labour auditors on the dates specified in the Appendix. They informed the Constitutional Court of this development and requested that their appeal be nevertheless examined.
6. On various dates, the Constitutional Court rejected the applications by way of a summary formula decision.
7. The applicants complained under Article 6 of the Convention about the delay in the enforcement of the court decisions in question as well as the alleged inconsistency of the case-law with respect to the date from which the amount of salary differences due to them was to be calculated.
THE COURT’S ASSESSMENT
Joinder of the applications8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Complaints concerning the delays in the enforcement of court decisions9. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what was the nature of the award (see, inter alia, Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). While the Court has due regard to the domestic statutory time-limits set for enforcement proceedings, their non-respect does not automatically amount to a breach of the Convention. Some delay may be justified in particular circumstances but it may not, in any event, be such as to impair the essence of the right protected under Article 6 § 1 (compare Burdov, cited above, § 35).
10. Turning to the present cases, the Court notes that the first applicant was appointed to the post of labour auditor in the course of the administrative court proceedings and therefore it cannot be said that there was any delay in the enforcement of a final and binding judgment within the meaning of Article 6 § 1 of the Convention. As for the remaining applicants, the Court notes that they were appointed to the post of auditors within six months of the final administrative court decisions in the relevant proceedings. The Court is mindful that the authorities needed a certain lapse of time for enforcing decisions relating to employment and does not find a period of six months unreasonable in view of these circumstances (see, for a similar conclusion, Gaftoniuc v. Romania (dec.), no. 30934/05, § 24, 22 February 2011 and, mutatis mutandis, Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 168-172, 1 July 2014).
11. Lastly, it was not alleged that the compensation ordered by the administrative courts with respect to the salary differences due to the applicants were not paid.
12. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Complaints concerning the alleged inconsistency of the case-law13. The Court has already acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 51, 20 October 2011). Similarly, in Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016) the Court reiterated that the criteria to be followed in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entailed a violation of the right to a fair hearing, as enshrined in Article 6 § 1 of the Convention, consisted in establishing, firstly, whether “profound and long-standing differences” existed in the case-law of the domestic courts; secondly, whether the domestic law provided for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism had been applied and, if appropriate, to what effect.
14. Turning to the present cases, the Court observes that the applicants submitted only two decisions of the Supreme Administrative Court in which that court awarded salary differences to the litigants effective from the date when their advancement to the post of labour auditor became due, that is to say when they succeeded in the relevant auditor exam (see paragraph 3 above).
15. In such circumstances, it cannot be said that there were “profound and long‑standing differences” in the relevant case-law of the administrative courts (see for a similar conclusion Melgarejo Martinez de Abellanosa v. Spain, no. 11200/19, §§ 34-36, 14 December 2021). Considering this aspect, the Court finds no reason to further examine whether the domestic law contained provisions for overcoming those inconsistencies, whether those provisions were applied and to what effect.
16. In addition, the Court notes that the applicants in the present cases had the benefit of adversarial proceedings, in which they were able to adduce evidence as they deemed necessary and have their arguments properly examined by the courts. At the same time, the courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.
17. Having regard to all the above-mentioned considerations, the Court considers that this part of the applicants’ complaint is manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Other alleged violations of the Convention18. The applicants further complained under Article 13 of the Convention that they had had no effective remedy in respect of their Convention complaints and under Article 1 of Protocol No. 1 to the Convention that they were deprived of an amount in salary differences due to the allegedly inconsistent application of case-law.
19. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
20. It follows that this part of the applications must also be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 1 December 2022.
Dorothee von Arnim Egidijus Kūris
Deputy Registrar President
Appendix
List of cases:
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Date of announcement of exam results for the labour auditor post
Date of administrative request to be appointed
Date of final administrative court decision
Date of appointment
Constitutional Court’s decision
1.
27737/20
Tuna Çolak v. Türkiye
03/07/2020
Tuğba TUNA ÇOLAK
1986
Ankara
Turkish
24/04/2017
19/10/2018
20/09/2019
24/06/2019
17/06/2020
2.
3408/22
Ayaydın v. Türkiye
07/01/2022
Ahmet AYAYDIN
1980
İzmir
Turkish
06/08/2014
20/09/2018
28/12/2020
23/06/2021
09/12/2021
3.
10735/22
Çakmak Toçoğlu v. Türkiye
16/02/2022
Sevilay ÇAKMAK TOÇOĞLU
1985
İzmir
Turkish
06/08/2014
20/09/2018
28/12/2020
23/06/2021
27/12/2021
4.
11248/22
Demirok v. Türkiye
22/02/2022
Tuğba DEMİROK
1988
Ankara
Turkish
24/04/2017
17/09/2018
28/12/2020
23/06/2021
21/12/2021