SECOND SECTION

Application no. 37398/05 Kamil Melih TÖRELİ against Turkey lodged on 11 October 2005

STATEMENT OF FACTS

The applicant, Mr Kamil Melih Töreli , is a Turkish national, who was born in 1948 and lives in Antalya . He is represented before the Court by Mr E. Sansal , a lawyer practising in Ankara .

A . The circumstances of the case

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

1. Background to the case

On 14 March 1993 the applicant, who is a metallurgical engineer, was appointed by a decree to the position of director general at Asil Çelik Sanayi ve Ticaret A. Ş . (“ Asil Çelik ”), a public company at the material time, which engaged in the production of steel and steel products.

On 6 August 1997 the applicant left Asil Çelik to work as a consultant at the Mechanical and Chemical Industry Corporation ( Makina ve Kimya Endüstrisi Kurumu - hereinafter “MKEK”), a state-owned enterprise.

In 2001 , after attaining the minimum service requirement for retirement, the applicant retired from his position at MKEK.

2. Dispute as regards the applicable social security scheme

On 13 March 1998, upon finding out that he had not been attached to the Retirement Fund ( Emekli Sandığı ) governing civil servant s while serving as a director general at Asil Çelik , the applicant lodged an application with the General Directorate of Retirement Fund (“the General Directorate”) for the rectification of this error.

In the meantime, he had started working as a consultant at the MKEK, where he was attached to the Retirement Fund by virtue of the nature of his services .

On 3 April 1998 th e applicant was informed by the General Directorate that his request could not be granted as his status at Asil Çelik was governed under the Labour Law, which effectively meant that he was subjected to a different social security scheme regulated by the Social Security Institution, covering private and publ ic sector workers employed on a contract.

The applicant brought an action before the Ankara Administrative Court for the annulment of the decis ion of the General Directorate.

On 20 May 1999 the Ankara Administrative Court granted the applicant ’ s request , holding that his service in Asil Çelik fulfilled the requirements under Law no. 5434 on the Retirement Fund for affiliation to that fund; that is, he worked in a company half of whose paid-in capital belonged to a public company on a permanent post. It therefore annulled the decision refusing the applicant ’ s affiliation to the Retirement Fund during his service as director general at Asil Çelik .

On 1 November 2001 the Supreme Administrative Court upheld the Ankara Administrative Court ’ s judgment. The General Directorate requested the rectification of this decision, which it deemed to be contrary to the relevant laws and regulations .

On 14 January 2004 the Supreme Administrative Court found in favour of the General Directorate and remitted the case back to the first-instance court for a fresh decision. It held that under Section 12 of the Law no. 5434 on the Retirement Fund, eligibility for affiliation to the Retirement Fund for civil servants was conditional upon two factors: firstly, the employee had to be working in one of the establishments lis ted in paragraph (I) of Section 12; and secondly, the employee had to be amongst the groups of persons enumerated in paragraph (II) of that section. According to the court, there was no doubt that Asil Çelik fell under paragraph (I), since more than half of its paid-in capital belonged to a public company, as provided in subparagraph (j). However, the applicant was not amongst the group of persons that came under paragraph (II): where companies that were set up according to private law provisions, such as Asil Çelik , were concerned, the personnel whose posts were not specifically enumerated in the annex to Decree no. 399 would be governed by the Labour Law, and would thus be affiliated to the Social Security Institution for social security purposes. It appeared that the applicant ’ s post was one that was not included in the annex to the decree in question, which barred his association with the Retirement Fund during the term of that post.

On 15 April 2004 the Ankara Administrative Court complied with the reasoning of the Supreme Administrative Court and rejected the applicant ’ s request for the affiliation of his services at Asil Çelik to the Retirement Fund.

On 13 April 2005 the Supreme Administrative Court upheld the judgme nt of the first-instance court.

It appears that whereas the applicant was receiving a pension at director general level from the Retirement Fund at the time of his retirement in 2001, the pension and other social security benefits ceased in June 2004 pending the reconfiguration of his social security status following the administrative court decisions. During this period, where the pension payments were interrupted for an indeterminate period, the applicant was forced to sell his house for sustenance.

3. Developments after lodging of the application before the Court

I n a letter dated 30 November 2010 the applicant informed the Court t hat after a two-year period of interruption , his social security rights , including pension, had resumed in 2006 under the Retirement Fund scheme [1] , and a collective payment was made to him by that fund for the pensions he had been deprived of between 2004 and 2006 . He claimed that this delay had been caused by the Social Security Institute, wh ich allegedly took two years to respond to an inquiry from the General Directorate of Retirement Fund, despite the applicant ’ s efforts to hand-deliver the requested information .

The applicant further stated that at the recommencement of his social security rights, h e started receiving a pension at the ordinary civil servant level, without regard to his status as an engineer. Moreover, t he extra pension he had received between 2001 and 2004 from the Retirement Fund was being deducted from his pension , at a rate of 25% per month.

B. Relevant domestic law and practice

1. Social Security Reform of 2006

At the time of the events giving rise to this application, there were three distinct social security schemes in place in Turkey: ( i ) the Retirement Fund ( Emekli Sandığı ), which exclusively governed the social security rights of civil servants; (ii) the Social Security Institution ( Sosyal Sigortalar Kurumu ), covering private and public sector workers employed on a contractual basis and subject to the Labour Law; and (iii) a separate fund for self- employed workers and farmers ( Bağ-Kur ).

In order to eliminate the discrepancies arising from the multiplicity of social security schemes and to establish coherence in the application of the social security policy across the board, in 2006 all three social security schemes were united under a new single body, namely the Sosyal G ü venlik Kurumu , by Law no. 5502 that came into force on 20 May 2006.

2. Social security entitlements of persons who worked under different social security regimes

According to Section 8 of Law no. 2829 (repealed as of 1 June 2008) , the old age pension and other social security benefits of persons who had worked under different social security schemes over the years were to be governed by the scheme under which the concerned person ha d worked the longest in the last seven years prior to retirement .

COMPLAINTS

The applicant assert s under Article 1 of Protocol No. 1 that despite having paid contributions to different social security funds for over twenty ‑ five years, the payment of his old age pension was discontinued in June 2004 for approximately two years, which amounted to a violation of his property rights.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s right to property, as protected under Article 1 of Protocol No. 1 to the Convention, violated on account of the discontinuation of his pension payments in 2004? Were there any effective domestic remedies available to the applicant to seek redress for the non-payment of his pension?

2. Can the applicant be considered to have lost his victim status under Article 1 of Protocol No. 1 upon the resumption of the pension payments and the lump sum discharge of the pension arrears in 2006? In particular, did the national authorities acknowledge the interference with the applicant ’ s property rights and afford appropriate and suffic ient redress to that effect (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 VI )? Did the lump sum payment include interest on the monies owed?

The Government are invited to explain the reason for the two-year interruption in the payment of the applicant ’ s old age pension .

[1] 1. Even if the applicant was affiliated to the Social Security Institution, as opposed to the Retirement Fund for civil servants, during his service at Asil Ç elik , his ensuing four years of service at MKEK (between 1997 and 2001) qualified him to retire under the Retirement Fund scheme. Please see the “Relevant domestic law and practice” section for details on the determination of the applicable retirement scheme.