Communicated on 29 June 2020 Published on 20 July 2020

SECOND SECTION

Application no. 77257/17 Turgut AKGÖL against Turkey lodged on 25 October 2017

SUBJECT MATTER OF THE CASE

The application concerns the rejection of the applicant ’ s compensation claim for the damages arising from his inability to work as a customs consultant and the termination of his contract during the course of the administrative proceedings.

In 2009 the applicant applied to the Customs Undersecretariat to obtain a customs consultant license, as he considered that he fulfilled the conditions for the post, including having worked as an acting director for more than three years.

On 06 May 2009 his request was rejected on the ground that the deputy undersecretary who signed the approval for his assignment as an acting director had not been authorised to do so at the time.

In 2009 the applicant lodged an action for the annulment of the rejection in question. On 30 September 2009 the Ankara Administrative Court stayed the execution of the administrative decision. Following that decision, the applicant was given the licence concerned, upon which he concluded a contract with a company on 22 February 2010, providing him with a monthly salary of 2,200 Turkish Liras (TRY).

On 08 April 2010 the Ankara Administrative Court accepted the applicant ’ s case and annulled the administrative decision in question.

Following the administration ’ s appeal request, on 19 July 2010 the Supreme Administrative Court stayed the execution of the Ankara Administrative Court ’ s judgment. As a consequence, on 28 September 2010 the applicant gave back his licence. However, by a decision of 10 April 2013 the Supreme Administrative Court upheld the judgment.

In 2014, the applicant lodged another case before the Administrative Court and sought compensation for his pecuniary and non-pecuniary damages on the ground that he had not worked as a customs consultant due to the rejection of his application to have the licence at issue between 6 May 2009 and 30 September 2009 (4 months, 25 days) and the Supreme Administrative Court ’ s decision staying the execution of the lower court ’ s judgment between 19 July 2010 and 10 April 2013 (2 years, 8 months and 20 days). In 2014 the Ankara Administrative Court awarded him TRY 5,000 in respect of non-pecuniary compensation. However, the domestic court dismissed his claim regarding the pecuniary damages, finding that there had been no service failure entailing the liability of the administration. That judgment became final on 23 February2016.

Subsequently, the applicant lodged an application with the Turkish Constitutional Court which found his complaint concerning his right to a fair trial inadmissible as being manifestly ill-founded. It also found his claim regarding his right to work inadmissible for being incompatible ratione materiae , stating that its competence to examine individual applications was limited to alleged breaches of rights set out in the Constitution which also fell within the scope of the Convention and its Protocols ratified by Turkey. It noted that although the right to work was protected by the Constitution, it could not examine complaints regarding that right as it was not protected by the Convention and its Protocols.

Relying on Article 1 of Protocol No. 1, the applicant complains of a violation of his right to peaceful enjoyment of possessions, arguing that the pecuniary damage caused to him by the administration ’ s initial rejection and the Supreme Administrative Court ’ s stay of execution decision was not compensated.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust the domestic remedies in respect of his complaint under Article 1 of Protocol No. 1, as required by Article 35 § 1 of the Convention?

In particular, in view of the Turkish Constitutional Court ’ s case-law (see, in particular, Hüseyin Remzi Polge , no. 2013/2166, 25 June 2015) where it examined a complaint regarding the right to work from the standpoint of the right to property, and the approach it adopted in the present case, can the applicant be considered to have raised the complaint he submitted to the Court “in substance” before the domestic authorities (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , §§ 116-117, 20 March 2018)?

2. Has there been a violation of the applicant ’ s right to peaceful enjoyment of his possessions within the m eaning of Article 1 of Protocol No. 1 to the Convention, on account of the pecuniary damages arising from his inability to work during the periods where he could not have the license to work as a customs consultant, taking account of the fact that he had already started working in that position at the time of the Supreme Administrative Court ’ s decision of 19 July 2010 and that he was eventually given the license by a final judicial decision?