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SECOND
SECTION
CASE OF FAHRETTİN AYDIN v. TURKEY
(Application
no. 31695/02)
JUDGMENT
STRASBOURG
29 January
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fahrettin Aydın v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
András
Baka,
Riza
Türmen,
Mindia
Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović, judges,
and
Sally Dollé, Section Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31695/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Fahrettin Aydın
(“the applicant”), on 6 June 2002.
- The
applicant was represented by Mr E. Talay, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
17 November 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Diyarbakır.
- The
applicant is a history teacher and a member of Eğitim-Sen, a
trade union formed by public employees working in the domain of
education. He was working at the Diyarbakır Atatürk High
School at the time of the events giving rise to the present
application.
- On
26 and 27 October 1998, in response to the call made by the
Diyarbakır branch of the Confederation of Public Employees'
Trade Unions (Kamu Emekçileri Sendikaları
Konfederasyonu – hereinafter referred to as the “KESK”),
of which Eğitim-Sen is a member, the applicant arrived at his
workplace wearing a rosette with the slogan “The exiles cannot
intimidate us – KESK Diyarbakır”, to protest against
the transfer of public officials, who were members of trade unions,
to other posts outside of the state of emergency region.
- On
28 May 1999, upon the decision of the Governor of the state of
emergency region and in accordance with Article 4 (g) of Legislative
Decree no. 285, the Ministry of Education transferred the applicant
to a post in a school in Giresun.
- On
an unspecified date, the applicant filed a petition with the
Diyarbakır Administrative Court and requested the annulment his
transfer to Giresun.
- On
14 June 2000 the Diyarbakır Administrative Court dismissed the
applicant's request, without examining the merits of the case. The
court noted that Article 7 of Legislative Decree no. 285 precluded
any application to the administrative courts for the purpose of
setting aside an administrative act performed pursuant to that
Decree.
- On
28 August 2000 the applicant appealed against the judgment of 14 June
2000. In his petition, the applicant contended that the provision
contained in Article 7 of Legislative Decree no. 285 was in violation
of his rights under Articles 6 and 13 of the Convention.
- On
18 October 2001 the Supreme Administrative Court upheld the judgment
of the Diyarbakır Administrative Court. This judgment was served
on the applicant on 12 December 2001.
- In
their observations, the Government informed the Court that, on
21 June 2006, the applicant was transferred to a school in
Diyarbakır, upon his request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Ertaş Aydın and Others v. Turkey (no.
43672/98, §§ 29-37, 20 September 2005).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government submitted in the first place that the application should
be rejected as being incompatible ratione materiae with the
provisions of the Convention. In this respect, they referred to the
Court's case-law (Pellegrin v. France [GC], no. 28541/95, §
67, ECHR 1999 VIII) and maintained that disputes relating to the
career of civil servants were outside the scope of Article 6 of the
Convention.
- Secondly,
they argued that the applicant had failed to exhaust the domestic
remedies as, following his transfer to Giresun, he had not applied to
the Ministry of Education requesting his transfer to another city. In
this connection, the Government recalled that, when the applicant
made such a request in 2006, he was transferred to a school in
Diyarbakır.
- As
regards the first preliminary objection of incompatibility, the Court
reiterates that it has already examined and rejected the Government's
similar objections in previous cases (see Metin Turan v. Turkey,
no. 20868/02, §§ 17-20, 14 November 2006). In this
respect, it refers to its recent case-law, according to which there
can in principle be no justification for excluding ordinary labour
disputes from the guarantees of Article 6 § 1 of
the Convention, such as those relating to salaries, allowances or
similar entitlements, on the basis of the special nature of
relationship between the particular civil servant and the State in
question (Vilho Eskelinen and Others v. Finland [GC], no.
63235/00, § 62, ECHR 2007 ...). It accordingly rejects this
objection.
- As
regards the second objection concerning the exhaustion of domestic
remedies, the Court considers that it is closely linked to the merits
of the complaint raised under Article 13 of the Convention. It
therefore joins the objection to the merits of that complaint.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- Relying
on Article 11 of the Convention, the applicant maintained that his
transfer to another city was a reprisal for his trade union
activities.
- The
Government contested that argument. They stated that the applicant's
transfer was not related to his trade union activities and maintained
that, following his transfer, the applicant could have continued
them. According to the Government, pursuant to Law no. 657 on public
servants, all government employees can be transferred to different
cities.
- Having
examined all the material submitted to it, the Court notes that the
applicant has not put forward any fact or argument capable of
substantiating his allegation that he had been transferred to Giresun
because of his trade union activities (see, a contrario
Metin Turan, cited above, § 30-32). Therefore the Court
does not find it established that the applicant's transfer
constituted an infringement of his rights under Article 11 of
the Convention.
- The
Court further recalls that it has already examined similar complaints
and found no violation (see, Ertaş Aydın and Others,
cited above, §§ 47-54; Ademyılmaz and Others v.
Turkey, nos. 41496/98, 41499/98, 41501/98, 41502/98,
41959/98, 41602/98 and 43606/98,
§§ 39-42, 21
March 2006; Bulğa and Others v. Turkey, no. 43974/98,
§§ 69-76, 20 September 2005; and Akat v.
Turkey, no. 45050/98, §§ 38-45, 20 September
2005). It finds no particular circumstances in the instant case which
would require it to depart from its findings in the above-mentioned
applications.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention (see, also Soysal and Others v. Turkey,
nos. 54461/00, 54579/00 and 55922/00, § 31, 15 February
2007).
III. ALLEGED VIOLATION OF ARTICLES 6 and 13 OF THE
CONVENTION
- The
applicant complained that there had been no effective remedy in
domestic law whereby he could challenge the administrative act
performed pursuant to Legislative Decree no. 285. He relied on
Articles 6 and 13 of the Convention. The Court notes that the
applicant's complaint should be examined from the standpoint of
Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested the applicant's argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court observes that the legislation in force at the time precluded
any application to the administrative courts for the purpose of
setting aside an administrative act performed pursuant to Legislative
Decree no. 285.
- The
Court has examined similar cases on previous occasions and has found
violations of Article 13 of the Convention in respect of the lack of
an effective remedy under Turkish law whereby the applicant could
have challenged the administrative act which ordered his transfer to
another city (Ertaş Aydın and Others, cited above,
§§ 58-62; Ademyılmaz and Others, cited above,
§§ 45-48; Bulğa and Others, cited above, §§
80-83; Akat, cited above, §§ 48-51; and
Soysal and Others, cited above, §§ 50-54). It finds
no reason to depart from that conclusion in the present case. It
follows that the Government's preliminary objection (see paragraph 17
above) must also be dismissed.
- There
has accordingly been a breach of Article 13.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further invoked Articles 8, 10 and 14 of the Convention.
- The
Government contested those allegations.
- The
Court has examined the applicant's complaints raised under
Articles 8, 10 and 14 of the Convention. However, having regard
to all materials in its possession, the Court finds nothing
whatsoever in the case file which might disclose any appearance of a
violation of these provisions. It follows that this part of the
application is manifestly-ill founded and must be rejected, pursuant
to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant maintained that, as his family lived in Diyarbakır and
he was transferred to a post in Giresun, he had been travelling back
and forth. As a result, he claimed 20,000 euros (EUR) in respect of
pecuniary damage. He further claimed EUR 10,000 in respect of
non-pecuniary damage.
- The
Government contested these claims.
- The
Court observes that there is no causal link between the violation
found and the pecuniary damage claimed before the Court. However, it
considers that the applicant must have sustained some non-pecuniary
damage. Taking into account the circumstances of the case and ruling
on an equitable basis, the Court awards the applicant EUR 500 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for the costs and expenses incurred
before the Court.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the applicant has not
substantiated that he has actually incurred the costs so claimed.
Accordingly, it makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection concerning the exhaustion of domestic remedies and
dismisses it;
2. Declares the complaint concerning the right to
an effective remedy admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the State is to pay the applicant, within three months from the date
on which the judgment becomes final in accordance with Article 44 §
2 of the Convention, EUR 500 (five hundred euros) in respect of
non pecuniary damage, to be converted into New Turkish liras at
the rate applicable at the date of settlement and free of any taxes
or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
