THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29921/96 by Cengiz BÃœKER against Turkey

The European Court of Human Rights ( Third Section ), sitting on 21 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. Kūris, Mr R. Türmen,

Mr W. Fuhrmann, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 02 October 1995 and registered on 23 January 1996,

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 is a Turkish national, born in 1942 and living in Ankara.

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

A. Particular circumstances of the case

The applicant worked on the basis of a two-year contract, beginning on 9 December 1985, as an assistant Professor in the Faculty of Medicine of the Kayseri Erciyas University. Under Turkish law he had the status of a civil servant. In an administrative decision dated 21 December 1987 the Office of the University President concluded that the applicant’s contract would not be renewed on the grounds of his professional incompetence. The applicant maintains that he was not informed of this decision until he went to the bank to draw out his monthly salary.

On 4 March 1988 the applicant challenged the decision before the Kayseri Administrative Court. In a judgment dated 6 December 1989 (Judgment no. 1) the court ruled in the applicant’s favour finding that the administration failed to substantiate its view that he was not competent for the post. The court annulled the administrative decision. On 29 January 1990 the court’s judgment was served on the Office of the University President, which failed to comply with it within the 60-day period prescribed by domestic law.

The Office of the University President appealed and the file was sent to the Supreme Administrative Court on 22 May 1990. On 13 June 1990 the 5th Chamber of the Supreme Administrative Court quashed the judgment of the Kayseri Administrative Court. This judgment was served on the Office of the University President on 30 July 1990. The case was remitted to the Kayseri Administrative Court.

In a judgment dated 5 July 1991 (Judgment no. 2) the Kayseri Administrative Court adhered to ( uyma ) the judgment of the Supreme Administrative Court and held that the decision of the Office of the University President not to renew the applicant’s contract was lawful. On 21 August 1991 the applicant appealed to the 5th Chamber of the Supreme Administrative Court. The file was referred to the court on 4 October 1991. On 18 March 1992 the 5th Chamber of the Supreme Administrative Court upheld the judgment of the Kayseri Administrative Court of 5 July 1991.

On 13 October 1992 the applicant subsequently petitioned the 5th Chamber of the Supreme Administrative Court requesting rectification ( karar düzeltme ) of its latest judgment. On 21 June 1993 the 5th Chamber of the Supreme Administrative Court rectified its judgment by quashing the judgment of the Kayseri Administrative Court of 5 July 1991. The case was remitted to the Kayseri Administrative Court.

In a judgment dated 2 December 1993 (Judgment no. 3) the Kayseri Administrative Court adhered to ( uyma ) the judgment of the Supreme Administrative Court of 21 June 1993 and again annulled the 1987 decision of the Office of the University President. On 19 February 1994 this judgment was served on the Office of the University President. The Office of the University President again did not comply with this new judgment within the 60-day period prescribed by domestic law.

On 23 February 1994 the Office of the University President appealed against the judgment (Judgment no. 3) of the Kayseri Administrative Court. On 27 June 1994 the 8 th Chamber of the Supreme Administrative Court rejected the appeal and upheld the judgment. The judgment restated that the administration had failed to substantiate its view that the applicant was not competent for the post. The Office of the University President requested the 8th Chamber of the Supreme Administrative Court to rectify its judgment ( karar düzeltme ). On 23 March 1995 the 8th Chamber of the Supreme Administrative Court rejected this request.

On 28 March 1994 the applicant sent a notarised letter to the Office of the University President demanding that he be reinstated in his former post and be awarded the salary and other monetary rights owing to him.

On 7 December 1995 the applicant received a letter from the Office of the University President dated 4 December 1995 notifying him that he had been re-appointed to his former post as of 23 November 1995. On 15 December 1995 the applicant took up his functions.

On 27 December 1995 the applicant resigned. He requested the Office of the University President to process his voluntary retirement.

In three separate actions, the applicant sued the Office of the University President before the Kayseri Administrative Court, requesting that he be paid the monthly salaries and related monetary rights for the periods during which he was entitled to assume his duties in accordance with the judgments of the domestic courts upholding his claim to reinstatement. In three judgments dated 25 January 1994, 25 January 1995 and 16 January 1996, respectively, the Kayseri Administrative Court held, inter alia , that since the Office of the University President had unlawfully failed to comply with its two judgments in favour of the applicant within 60 days as prescribed by law, it was liable in damages to the applicant, having regard to the court’s finding that the decision to terminate his contract was unlawful. It ruled that the applicant should be paid the monthly salary and related monetary rights for the given periods. The applicant was eventually paid.

B. Relevant domestic law

Code of Administrative Procedure ( İdari Yargılama Usulü Kanunu )

Article 28 § 1 (as amended on 10 June 1994)

“The administration is obliged, without delay, to act de iure or de facto in order to comply with the requirements of judgments with regard to the merits ... rendered by ... administrative courts [of first instance] ... Under no circumstance can this period exceed 30 days starting from the day the judgment is served on the administration.”

Article 28 § 3

“When the administration fails to comply either de iure or de facto with the judgment of ... an administrative court an action may be brought against the adminisration ... for pecuniary and non-pecuniary damages before the ... competent administrative court.”

Article 28 § 4

“When a civil servant intentionally fails to comply with a court judgment within a period of thirty days, the person concerned may, as an alternative to bringing proceedings against the administration, initiate a claim for compensation against that civil servant.”

Article 52 (as amended on 5 April 1990)

“1. The initiation of an appeal ... does not stop the execution of the judgment rendered by a judge, court or by the Supreme Court of Cassation . ...

4. When a judgment is quashed, its execution stops automatically.”

Article 54 § 1 (as amended on 5 April 1990)

“1. The parties may request only once rectification of a judgment given on appeal by ... the Supreme Administrative Court ( Danıştay ) ... within 15 days after the judgment is served on them ...”

THE LAW

The applicant complains under Article 6 § 1 of the Convention that it took him seven and a half years to be reinstated to his university post on account of the university’s failure to implement the judgments given by the administrative courts in his favour. Article 6 § 1 states as relevant:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ...”

The Government submit that the proceedings were complex, involving several levels of instances and recourse by the parties to different types of remedies. On the understanding that the period to be considered commenced on 4 March 1988, the date on which the applicant instituted proceedings, and ended on 23 March 1995 with the rejection by the 8th Chamber of the Supreme Administrative Court of the Office of the University President’s request for rectification, the Government insist that about half of this period was taken up by the applicant’s appeals and the manner in which he conducted his case. No unreasonable delay can be imputed to the university authorities, less so to the domestic courts which delivered a total of fourteen decisions over the relevant period.

The Government state that the applicant was compensated for the damage suffered as a result of the non-renewal of his contract and that payment was effected on the basis of a final court decision. For the Government the applicant’s complaint is manifestly ill-founded and on that account should be declared inadmissible.

The applicant states that the university authorities failed to comply with the initial decision of the Kayseri Administrative Court upholding his complaint of unfair dismissal. Their failure obliged him to invoke the appeal process to ensure respect for that decision and he could not be faulted for availing himself of his appeal rights. The applicant denies that the length of the proceedings, which he does not consider to be extraordinary, can engage his responsibility. Admittedly he had received compensation for lost salary. However, the award did not compensate him for the pain and suffering which he had to endure in fighting his case.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant s’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits.

S. Dollé N. Bratza Registrar President