FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36593/97 by Muammer YILMAZOÄžLU against Turkey

The European Court of Human Rights (First Section), sitting on 12 June 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr R. Türmen , Mrs F. Tulkens , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 29 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Muammer Yılmazoğlu, is a Turkish national, who was born in 1931 and lives in Izmir. He is represented before the Court by Mr G. Dinç, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court

A. The circumstances of the case

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

On 6 May 1980 the applicant retired from his post at the Izmir Labour Court as a judge of the highest grade. Until 25 May 1987 he worked as a lawyer.

On 25 May 1987, following a request made by the applicant, the Supreme Council of Judges and Prosecutors re-appointed him to the Manisa Labour Court as a judge.

On 21 January 1991 the applicant lodged an application with the Supreme Council of Judges and Prosecutors requesting that his salary be calculated on a different basis and be increased accordingly. He argued that the period during which he had practised as a lawyer (i.e. 7 years and 19 days) should be included into his civil service while calculating his salary.

On 26 February 1991 the Supreme Council of Judges and Prosecutors dismissed the applicant’s request.

The applicant lodged an application with the Ankara Administrative Court to annul the Council’s decision. On 21 May 1991 the Ankara Administrative Court declined jurisdiction ratione loci and referred the case to the Izmir Administrative Court.

On 17 September 1991 the Izmir Administrative Court rejected the applicant’s request. The court ruled that it was not competent to examine the applicant’s claim as the decisions of the Supreme Council of Judges and Prosecutors were final and not subject to any judicial review. The applicant learned of this judgement on 30 October 1991.

On 7 November 1991 the applicant appealed to the Supreme Administrative Court against the judgment of the Izmir Administrative Court.

On 13 June 1995 the Supreme Administrative Court dismissed the applicant’s appeal. The decision of the Supreme Administrative Court was served on the applicant on 30 October 1995.

On 11 November 1995 the applicant requested the rectification of the Supreme Administrative Court’s decision. On 22 January 1997 the Supreme Administrative Court dismissed the applicant’s request for rectification of the decision.

B. Relevant domestic law

According to Article 11 of the Act no. 2461 on the High Council of Judges and Prosecutors, the Minister of Justice or interested parties can ask the Council for the rectification of a decision within 10 days from its notification.

Article 12 of the same Act provides that the interested parties can object to the Council’s decision on rectification within 10 days from the date on which the decision is served on them. A committee presided over by the Minister of Justice examines the objection. The decision of the committee is definite. No appeal against this final decision can be lodged before another judicial authority.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he was not able to challenge the decision of the Supreme Council of Judges and Prosecutors before a judicial authority. He also complained under the same Article that the administrative courts did not deal with his case within a reasonable time.

The applicant further complained under Article 13 of the Convention that there was no effective remedy in domestic law because the Supreme Council of Judges and Prosecutor’s decision concerning the calculation of his salary was not subject to judicial review.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that he was unable to challenge the Supreme Council of Judges and Prosecutors’ decision concerning calculation of his salary before a judicial authority. He also complained that the length of the proceedings he had brought in order to have an increase in his salary was not reasonable within the meaning of Article 6 § 1 of the Convention. The relevant part of the Article provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

With reference to the Court’s case-law, the Government submitted that litigations concerning access to civil service, recruitment and dismissal of the civil servants do not involve the determination of civil rights or obligations and therefore fall outside the scope of Article 6 of the Convention (see X v. The Federal Republic of Germany , no. 9501/81, Commission decision of 7 December 1981, Decisions and Reports 27, p. 249; X v. the United Kingdom , no. 8496/79, Commission decision of 8 October 1980, (DR) 21, p. 168). They therefore argued that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention. The Government contended, in the alternative, that the applicantion should be rejected for being lodged out of time. They maintained that, according to Article 11 of the Act of the High Council of Judges and Prosecutors (Act no. 2461) the applicant had the opportunity to request the Council for the rectification of the decision within ten days from its notification. Furthermore, according to the Article 12 of the same Act the applicant could have raised an objection against the latter decision of the Council. The decision of the Council becomes definitive only after these remedies are exhausted. They therefore claimed that, as the applicant did not pursue any of these remedies, he should have lodged his application with the Court within six months from the Council’s decision dated 26 February 1991.

The applicant submitted that since the decision of the Supreme Council of Judges and Prosecutors relate to his statutory right to a salary, his claim in issue relate to a purely economic right where the discretionary powers of the authorities are not called into question. He therefore argued that, even though he is a judge, Article 6 must be applicable to his case.

The Court reiterates that employment disputes between the authorities and public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State, are not “civil” and are excluded from the scope of Article 6 § 1 of the Convention ( Pellegrin v. France [GC], no. 28541, ECHR 1999, p. 16, § 65).

The judiciary, while not being part of ordinary civil service, is nonetheless part of typical public service. A judge has specific responsibilities in the field of administration of justice, which is a sphere in which States exercise sovereign powers. Consequently, the judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State (see Pitkevich v. Russia (dec.), no. 47936/99, ECHR 2001).

Turning to the facts of the present case, it is to be noted that the applicant is a labour court judge who occupies a post of highest grade in the field of administration of justice. He therefore wields powers conferred by public law and assumes duties to safeguard general interests of the State. Thus, the dispute concerning the calculation of the applicant’s salary did not concern his “civil” rights or obligations within the meaning of Article 6 of the Convention. Accordingly, this provision is not applicable in the present case.

It follows that this part of the application is outside the Court’s competence ratione materiae . It is therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3.

2. The applicant alleged under Article 13 of the Convention that there was no effective remedy in domestic law because the Supreme Council of Judges and Prosecutor’s decision concerning the calculation of his salary was not subject to judicial review.

Article 13 of the Convention 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 did not comment on the applicant’s complaints under this provision.

The Court notes that Article 13 is inapplicable where the main complaint is outside the scope of the Convention (see Kaukonen v. Finland , no. 24738/94, Commission decision of 8 December 1997, Decisions and Reports (DR) 91, p. 14). In view of its conclusion concerning the applicant’s complaint under Article 6 of the Convention, the Court considers that this complaint is incompatible rationae materie with the provisions of the Convention within the meaning of Article 35 § 3.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President