SECOND SECTION

CASE OF ÇİÇEK AND ÖZTEMEL AND 6 OTHER CASES v. TURKEY

( Applications nos . 74069/01 , 74703/01 , 76380/01, 16809/02 , 25710/02, 25714/02 and 30383/02)

JUDGMENT

STRASBOURG

3 May 2007

FINAL

03/08/2007

This version was rectified on 23 October 2007 under Rule 81 of the Rules

of the Court

In the case of Çiçek and Öztemel and 6 other cases v . Turkey ,

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

Mrs F. Tulkens , President , Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Ms D. Jočienė , Mr D. Popović, judges , and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 3 April 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in seven applications ( nos. 74703/01, 74069/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02) 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”) . Application no. 74703/01 was subm itted by ten applicants, namely Mr Abbas Baran, Mr Mehmet Bayram Ceylan [1] , Mr M ehmet Cihat Aydı n, M r M . Ali Ağı n, Mr Mustafa YaÄŸmur, Mr Hasan BuÄŸa, Mr Fuat Albayrak, Mr Ahmet HüseyinoÄŸlu, Mr Enver Askan and Mr Hamdusela Ekinci . Application no. 74069/01 wa s submitted by co ‑ applicants Mr Ä°nayet Çiçek and Mr Necat Öztemel . The remainder of the applications were submitted by Mr Nusret Atlı (no. 76380/01), Mr Musa Narin (no. 16809/02 ), Mr Åžaban Canpolat (no. 25710 /02 ), Mr Mehmet Fikri Y ı ld ı r ı m (no. 25714/02) and Mr Mehmet Salih Kömekçi [2] (no. 30383/02).

2 . The applicants were all represented by Mr Sedat Çınar, a lawyer practising in Diyarbakır . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3 . On various dates between 2003 and 2005, the Court decided to give notice of the application s to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the sa me time as their admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant s are all Turkish nationals who live in Diyarbakır .

5 . In May 1999 the applicants were laid off by the Diyarbakır Sur municipality, with which they had been employed.

6 . E ach of the applicants brought an action in the Diyarbakır Labour Court , claiming outstanding salaries, dismissal indemnities, severance pays and other pecuniary rights.

7 . On 11 November 1999 the court ruled in their favour and ordered the municipality to pay the following amounts in Turkish lira (TRL), including cost s , together with interest running from June 1999:

8 . In the absence of an appeal the judgments became final on 19 November 1999.

9 . Within the following months, the applicants initiated enforcement proceedings in order to receive the due amounts. As their efforts proved fruitless , they requested the Diyarbakır Governorship to intervene to facilitate the enforcement of the court ' s judgments. The Governor ' s Office informed the applicants that they had requested the municipality to redress their grievances. However, the municipality did not make any payment since it was underfunded.

10 . At the date of introduction of the current applications, the relevant judgment debts were still outstanding. However, in the meantime , friendly settlement agreements were reached between the following applicants and the municipality on the dates indicated:

11 . No settlement was reached with the o the r applicants. However, the municipality deposited certain partial amounts in the relevant account at the local enforcement office, which amounts were made available to some applicants and later paid .

12 . On 9 November 2004 a settlement agreement was reached b y the applicants ' representative, Mr Sedat Çınar, and the authorities. The agreement concerned the outstanding legal fees stemming from the labour courts ' judgments. Mr Çınar waived all of his rights and claims in connection with his representation of the applicants in the labour cases.

13 . On 28 March 2005 Mehmet Salih Kömekçi [5] , Ahmet Hüseyinoğlu and M. Cihat Ayd ı n initiated fresh claims against the municipality to recover their severance pay.

RELEVANT DOMESTIC LAW AND PRACTICE

14 . Article 138 § 4 of the Turkish Constitution provides:

“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer the enforcement thereof.”

15 . Article 28 § 2 of the Code of A dministrative Procedure reads :

“2. Decisions and judgments in administrative-law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.”

16 . Under Section 82(1) of the Enforcement and Bankruptcy Act (Law no. 2004), State property cannot be seized. Likewise, Section 19(7) of the Municipalities Act (Law no. 1580 of 3 April 1930) provides that municipal property that is assigned to a public service can not be seized .

THE LAW

17 . Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join the m .

I . THE APPLICANTS ' VICTIM STATUS

19 . The applicants contended that the impugned protocols had been made due t o their financial vulnerability and that the deposited amounts merely constituted partial payments.

21 . The protocols stipulated that the applicants waived any outstanding compensation claims, rights and other credits including costs, expenses and legal fees, against the payment of certain lump sum amounts. Furthermore, thre e applicants among them, namely Mustafa Yağmur , Hamdusela Ekinci and Nusret Atlı, also waived any potential rights and claims in connection with their present applications before the Court.

I I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

27 . The applicants complain that the authorities ' failure to pay the judgment debts breached their rights to the peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1, which reads , in relevant part, as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general p rinciples of international law .”

A. Admissibility

28 . In addition to their submission that the applicants could no longer be considered victims (see Section I above), t he Government also raised the following admissibility challenges.

29 . First, they submitted that the Court lacked jurisdiction ratione materiae . According to the Government, the Convention and its Protocols do not protect economic and social rights. Article 1 of Protocol No. 1 should not cover the types of rights such as severance pay or dismissal indemnities.

30 . The Government also argued that the applicants failed to exhaust all domestic remedies. They submitted that, once the applicants failed to recover the judgment debts, there were a number of options available to them under Turkish law. They could have initiated criminal proceedings against the municipality for failure to comply with court judgments, filed fresh cases to seek temporary remedies such as a stay of execution , or applied for a certificate of insolvency ( aciz vesikası ) which would allow them to resume enforcement proceedings at any time in the future. Furthermore, some of the applicants failed to initiate any enforcement proceedings whatsoever.

31 . Thirdly, the Government argued that the complaints under Article 1 of Protocol No. 1 were manifestly ill-founded as the judgments of the labour court remained valid , despite the inability of the municipality to pay the judgment debts. Accordingly, the applicants could not be considered to have been deprived of any rights.

32 . Finally, the Government submitted that the applications of Mehmet Salih Kömekçi [8] , Ahmet Hüseyinoğlu and M. Cihat Ayd ı n should be declared inadmissible for failu re to exhaust domestic remedies given the fresh claims initiated by them.

33 . With regard to the Government ' s jurisdicti onal challenge, the Court recall s that the present applications do not concern the question of whether the applicants are entitled to certain economic and social rights under the Convention. Diyarbakır Labour Court has already addressed that issue as a matter of domestic labour law and resolved it in favour of the applicants. The only matter before this Court is whether the non-execution of the labour court ' s judgments raises issues under the Convention and its Protocols.

34 . In this context, the Court recalls that, in its well ‑ established jurisprudence, Article 1 of Protocol No. 1 as well as Article 6 of the Convention are applicable to non-payment of a judgment debt. Accordingly, the Court dismisses the challenge against its jurisdiction.

35 . As regards the Government ' s “non-exhaustion” objection, the Court recalls that a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to additional proceedings, such as enforcement proceedings , in order to have it executed (see Metaxas v. Greece , n o. 8415/02, § 19, 27 May 2004). In the same vein, the applicants were not required to seek a temporary remedy or a certificate of insolvency or to initiate criminal proceedi ngs for the purposes of Article 35 § 1 of the Convention. I n any event, n one of the remedies that the Government pointed out was capable of offering the applicants a ny prospect of success in forc ing the national authorities to pay the due amounts.

36 . The Court consequently dismisses the preliminary objection regarding the exhaustion of domestic remedies .

38 . Finally, the Court finds i t clear from the record that Mehmet Salih Kömekçi 1 , Ahmet Hüseyinoğlu and M. Cihat Ayd ı n , like the other applicants, exhausted all domestic remedies, with the labour courts ' judgments becoming final on 19 November 1999. T he fresh domestic claims which they initiated in a further attempt to collect the unpaid debts did not constitute ordinary and effective re medies which of necessi t y had to be exhausted.

B. Merits

40 . The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59).

41 . The Diyarbakır Labour Court ' s judgments of November 1999 provided the applicants with enforceable claims and not simply a general right to receive support from the State. The judgments had become final as no appeal was filed against them, and enforcement proceedings had been instituted. It follows that the impossibility, for the applicants who have not reached settlements with the municipality, to enforce the judgments in their favour constituted an interference with their right to the peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

43 . It follows that there has been a violation of Article 1 of Protocol No. 1 in respect of Mehmet Bayram Ceylan [9] , M. Cihat Ayd ı n , M. Ali Ağ ı n , Fuat Albayrak , Ahmet Hüseyinoğlu , Enver Askan , Şaban Canpolat and Mehmet Salih Kömekçi [10] .

III. ARTICLE 6 § 1 OF THE CONVENTION

44 . The applicants also complained that the failure by the authorities to comply with the labour court ' s judgments for a long period of time constituted a violation of their rights protected under Article 6 of the Convention which provides:

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

45 . The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State ' s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece , judgment of 19 March 1997, Reports 1997-II, p. 510, § 40).

46 . It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Whilst , a delay in the execution of a judgment may be justified in particular circumstances , it may not be such as to impair the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation on the ground of the alleged financial difficulties experienced by the Diyarbakır Sur Municipality .

47 . The Court notes that the Diyarbakır Labour Court ' s judgments of November 1999 remained unenforced wholly or in part at least until settlements protocols were made with certain applicants, and are still unenforced for the rest of the applicants (save for Mustafa Yağmur, Hamdusela Ekinci and Nusret Atlı : s ee Section I above) .

48 . In view of the above, the Court considers that b y failing for several years to take the necessary measures to comply with the final judicial decisions in the present case, the authorities deprived the provisions of Article 6 § 1 of all useful effect.

49 . There has accordingly been a violation of Article 6 § 1 of the Convention in respect of all of the applicants except for Mustafa Yağmur, Hamdusela Ekinci and Nusret Atlı .

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

50 . 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

51 . In respect of pecuniary damage, t he applicant s claimed various amounts ranging from around 1,800 to 4,000 euros (EUR), which, according to them, were equivalent to the sums that the judgments debts would have grown into, if they had been paid promptly and deposited in a savings account. Each of them also claimed EUR 3,000 in respect of non-pecuniary damage.

52 . The Government contested these sums, alleging that they were based on fictitious calculations. They also submitted that, were the Court to find violations in the present case, this would constitute sufficient compensation for any non-pecuniary damage allegedly suffered by the applicants.

53 . The Court finds that, in accordance with its finding of a violation of Article 1 of Protocol No. 1 (see Section II above), Mehmet Bayram Ceylan [11] , M. Cihat Ayd ı n , M. Ali Ağ ı n , Fuat Albayrak , Ahmet Hüseyinoğlu , Enver Askan , Şaban Canpolat and Mehmet Salih Kömekçi [12] are entitl ed to pecuniary damages. Bearing in mind that the applicants ' complaint related to the non-payment of judgment debts, the Court finds that the payment by the Government of these outstanding amounts, including any interest incurring under the applicable domestic law on late payment of employment claims, would satisfy the applicants ' claims for pecuniary damages.

- EUR 3,000 for Abbas Baran ;

- EUR 1,500 for Hasan BuÄŸa;

- EUR 2,400 for İnayet Çiçek;

- EUR 2,400 for Necat Öztemel;

- EUR 2,000 for Musa Narin;

- EUR 1,500 for Mehmet Fikri Yıldırım ; and

- EUR 5,000 for each of the applicants Mehmet Bayram Ceylan [13] , M. Cihat Aydın, M. Ali Ağın, Fuat Albayrak, Ahmet Hüseyinoğlu, Enver Askan, Şaban Canpolat and Mehmet Salih Kömekçi [14] .

B. Costs and expenses

55 . Each of the applicants claimed around EUR 1,200 to 1,300 for the costs and expenses incurred during the proceedings before the domestic authorities and the Court.

56 . The Government contended that the applicants ' claims were wholly unsubstantiated.

57 . On the basis of the material in its possession, in particular, having regard to the settlement agreement for domesti c legal fees that Mr Çınar made , the Court awards each applicant (except for Mustafa Yağmur, Hamdusela Ekinci and Nusret Atlı ) EUR 500 in respect of costs and expenses.

C. Default interest

58 . 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

1. Decides to join the applications;

2 . Strikes out th ose parts of the application filed by Mustafa Yağmur and Hamdusela Ekinci (no. 74703/01), a s well as th e application of Nusret Atlı (no. 76380/01);

3 . Holds th at the complaints under Article 6 of the Convention, submitted by the remainder of the applicants are admissible;

4 . Holds th at the complaints under Article 1 of Protocol No. 1 are admissible in respect of Mehmet Bayram Ceylan [15] , M. Cihat Ayd ı n , M. Ali Ağ ı n , Fuat Albayrak , Ahmet Hüseyinoğlu , Enver Askan , Şaban Canpolat and Mehmet Salih Kömekçi [16] and inadmissible with regard to the remainder of the applicants;

5 . Holds that there has been a violation of Article 1 of Protocol No. 1 in respect of Mehmet Bayram Ceylan 1 , M. Cihat Ayd ı n , M. Ali Ağ ı n , Fuat Albayrak , Ahmet Hüseyinoğlu , Enver Askan , Şaban Canpolat and Mehmet Salih Kömekçi 2 ;

6 . Holds that there has also been a violation of Article 6 § 1 of the Convention in respect of all applicants except for Mustafa Yağmur, Hamdusela Ekinci and Nusret Atlı ;

7 . Holds

(a) that the respondent State is to pay to Mehmet Bayram Ceylan 1 , M. Cihat Aydın , M. Ali Ağın , Fuat Albayrak , Ahmet Hüseyinoğlu , Enver Askan , Şaban Canpolat and Mehmet Salih Kömekçi 2 , within three months from the date on which the judgment becomes final, the amounts of the domestic judgment debts still owed to them, plus statutory interest applicable under domestic law;

(b) that the respondent State is also to pay the applicants who are listed below the following sums , to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) for Abbas Baran;

- EUR 1,500 (one thousand five hundred euros) for Hasan BuÄŸa;

- EUR 2,400 (two thousand four hundred euros) for İnayet Çiçek;

- EUR 2,400 (two thousand four hundred euros) for Necat Öztemel;

- EUR 2,000 for (two thousand euros) Musa Narin;

- EUR 1,500 (one thousand five hundred euros) for Mehmet Fikri Yıldırım; and

- EUR 5,000 (five thousand euros) for each of the applicants              Mehmet Bayram Ceylan 1 , M. Cihat Aydın, M. Ali Ağın, Fuat              Albayrak, Ahmet HüseyinoÄŸlu, Env er Askan,              Åžaban Canpolat and Mehmet Salih Kömekçi [17] .

(ii) EUR 500 (five hundred euros) to each of these applicant s for costs and expense s ;

(iii ) plus any taxes that may be chargeable;

(c ) 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;

8 . Dismisses the remainder of the applicant s ' claim for just satisfaction.

Done in English, and notified in writing on 3 May 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens Registrar President

[1] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[2] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[3] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[4] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[5] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[6] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[7] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[8] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[9] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[10] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[11] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[12] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[13] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[14] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[15] Rectified on 23 October 2007. The name of Mr Mehmet Bayram Ceylan read Mr Bayram Ceylan in the former version of the judgment.

[16] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.

[17] Rectified on 23 October 2007. The name of Mr Mehmet Salih Kömekçi read Mr Salih Kömekçi in the former version of the judgment.