SECOND SECTION

DECISION

Application no . 18546/08 Ertaç B İ L İ M against Turkey

The European Court of Human Rights (Second Section), sitting on 24 January 2017 as a Chamber composed of:

Julia Laffranque, President, Işıl Karakaş, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 4 April 2008,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ertaç Bilim, is a Turkish national who was born in 1969 and lives in Istanbul. He was represented before the Court by Ms Tuğba Tüfek, a lawyer practising in Istanbul.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 5 January 2006 the applicant was dismissed from his employment. In the dismissal notice, it was noted that the poor performance of the applicant had been brought to his attention in previous appraisal interviews and that a prior warning had been issued. It was also indicated that remedial coaching had been provided to the applicant on several occasions during 2005; however, the employer company had not discerned any progress.

4. On 3 February 2006 the applicant initiated proceedings before the Istanbul Labour Court against his former employer, requesting the annulment of his dismissal and asking to be reinstated. During the proceedings, the domestic court requested an expert report to determine if the dismissal notice had been issued in accordance with the relevant legislation and whether the grounds for dismissal given by the employer could be justified. In their report, the experts stated that there had been no procedural shortcomings in respect of the dismissal notice. The experts nevertheless stated that dismissal in such cases should be a last resort and that the applicant could have been given continuous coaching and mentoring to improve his performance.

5. On 14 March 2007 the Istanbul Labour Court gave its judgment and dismissed the applicant ’ s case. The first instance judge concluded that the dismissal grounds had been notified to the applicant in accordance with the law and that the applicant had been able to put forward his defence submissions. The judge , after taking into consideration the expert report, held that the applicant ’ s performance had not been satisfactory and that he had not participated in necessary team work exercises. He therefore concluded that the grounds for dismissal had been sufficient. In his appeal petition, the applicant argued that his performance could not be considered as insufficient. On 12 November 2007, finding in line with the first instance court ’ s reasoning, the Court of Cassation rejected the applicant ’ s appeal.

B. Relevant domestic law and practice

6. Article 20 of the Labour Code in so far as relevant reads:

“An employee who alleges that no reason was given for his dismissal or who considers that the reasons indicated were not sufficient as to justify his dismissal shall be entitled to lodge an objection with the labour court within one month of his receipt of the dismissal notice ...

...

The first-instance court must apply fast-track procedures and conclude the case within two months. If an appeal is lodged, the Court of Cassation must issue its final verdict within one month. ...”

COMPLAINTS

7. The applicant complained under Article 6 of the Convention of the excessive length of the proceedings. In this connection he maintained that in deciding on his case the domestic courts had not complied with the statutory time-limits provided in Article 20 of the Labour Code.

8. The applicant further alleged under Article 6 of the Convention that the proceedings had been unfair. In this connection, he stated that the first-instance court had failed in its evaluation of the evidence, and further claimed that the Court of Cassation had failed to provide sufficient reasoning in its decision.

THE LAW

A. Concerning the length of proceedings

9. The applicant complained of the excessive length of the proceedings. In this connection, he referred to Article 20 of the Labour Code and maintained that the impugned proceedings should have been terminated within three months.

10. The Court notes 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) to deal with, inter alia , applications concerning the length of proceedings that were lodged with the Court. Subsequently, in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), this remedy was considered to be a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings and the case was declared inadmissible on account of the applicants ’ failure to resort to that new remedy. Turning to the facts before it, the Court considers that there are no particular circumstances in the instant case preventing the applicant from using that new remedy in relation to his complaint. It therefore concludes that the applicant ’ s complaint under this head should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Concerning the fairness of proceedings

11. The applicant further complained that the proceedings had been unfair. According to the applicant, the first-instance court had failed in the evaluation of evidence and the decision of the Court of Cassation had lacked adequate reasoning.

12. The Court notes that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Paris h and Others v. Romania [GC], no. 76943/11, § 90, 29 November 2016, ECHR 2016 (extracts)).

13. In the instant case, the Court observes that there is nothing in the case file which might lead to the conclusion that the domestic court acted in an arbitrary or manifestly unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law. The Court notes from the documents in the case file that during the proceedings, the Istanbul Labour Court judge requested an expert report to determine if the dismissal notice had been issued in accordance with the legislation and whether the grounds for dismissal given by the employer could be justified . Subsequently, after examining the case file as a whole, the domestic court did not find in favour of the applicant. In this connection the Court reiterates that Article 6 does not, as such, require domestic courts to give prevalence to an expert opinion over its own analysis, evaluation or fact-finding (see Türk Ticaret Bankası Munzam Sosyal Güvenlik Emekli ve Yardım Sandığı Vakfı v. Turkey (dec.), nos. 48925/99 and 36109/04, 23 May 2006).

14. Regarding the applicant ’ s complaint of a lack of adequate reasoning in the decision of the Court of Cassation, the Court further reiterates that judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision in question and must be determined in the light of the circumstances of the case in question. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I).

15. In the present case, the Court observes that the decision of the first-instance court was fully reasoned and provided a specific and express reply to the applicant ’ s submissions, in which he merely stated, without any further arguments, that his performance could not be considered as insufficient. By upholding that decision, the Court of Cassation indicated its agreement with the reasoning of the first ‑ instance court, which was sufficient in the circumstances.

16. Having regard to the materials submitted by the applicant, the Court finds that the procedural guarantees contained in Article 6 were not breached in his case.

17. 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2017 .

             Stanley Naismith Julia Laffranque Registrar President