Erol CACLAYAN v Turkey - 30461/02 [2007] ECHR 728 (30 August 2007)

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The European Court of Human Rights (Third Section), sitting on 30 August 2007 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E. Fura-Sandström,
Mr David Thór Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

The applicant, Mr Erol Çağlayan, is a Turkish national who was born in 1961 and lives in Muğla. He is represented before the Court by Ms Hülya Demir, a lawyer practising in Muğla.

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

The applicant is a member of the Haber-Sen, a trade union formed by public employees. He is also a member of the Confederation of Public Employees’ Trade Unions (Kamu Emekçileri Konfederasyonu – “KESK”).

1. Facts concerning the applicant’s police custody on 29 October 1997 and the subsequent proceedings against the police officers

On 29 October 1997 the applicant was arrested in Muğla and taken to the Anti-Terrorism Branch of the Muğla Security Directorate. During his police custody, the applicant was allegedly beaten and threatened by the police officers.

On the same day, the applicant was taken to the Muğla State Hospital, where he was examined by a doctor. In his report, the doctor indicated the presence of hyperaemia on both cheeks and another hyperaemia measuring 10 cm x 10 cm on his back. The doctor concluded that the applicant was unfit for work for three days.

On 30 October 1997 the applicant was taken before the Muğla public prosecutor and the Muğla Magistrates’ Court respectively where he complained that he had been beaten while in police custody. He was subsequently placed in detention on remand.

On 25 November 1997 the applicant filed a complaint against the police officers, who had allegedly ill-treated and insulted him.

On 2 March 1998 the Muğla public prosecutor delivered a decision of non-prosecution in respect of the applicant’s allegations that he had been insulted and threatened while in his police custody. On the same day, the public prosecutor filed an indictment with the Muğla Criminal Court against six police officers accusing them of ill-treatment under Article 245 of the Criminal Code.

On an unspecified date, the Muğla Criminal Court decided to stay the proceedings against the accused officers and transferred the case file to the Muğla Provincial Administrative Council to obtain authorisation for criminal proceedings against the officers pursuant to the provisions of Law on the prosecution of civil servants. On 10 February 2000 the Muğla Provincial Administrative Council decided not to authorise a prosecution. The applicant appealed against this decision. On 15 February 2002 the Supreme Administrative Council decided to suspend the proceedings against the accused police officers pursuant to Law no. 4616 on Conditional Release, Deferral of Procedure and Punishments of 25 December 2000.

2. Facts concerning the criminal proceedings brought against the applicant before the Muğla Criminal Court (file no. 1997/628)

On 4 November 1997 the Muğla Criminal Court public prosecutor initiated criminal proceedings against the applicant, accusing him under Article 266 of the Criminal Code of resisting police officers on duty and insulting them. On 18 November 1997 the applicant was released pending trial. On 4 October 2000 the Muğla Criminal Court acquitted the applicant of the charges against him due to insufficient evidence.

3. Facts concerning the criminal proceedings brought against the applicant in the Muğla Criminal Court (file no 2000/387)

On 17 June 2000 the applicant was once again taken into police custody for insulting and resisting police officers. Subsequently, the Muğla public prosecutor initiated criminal proceedings against the applicant in the Muğla Criminal Court. On 12 March 2003 the court found the applicant guilty as charged and sentenced him to one month and twenty days’ imprisonment and a fine. The applicant appealed. On 13 September 2005 the Court of Cassation quashed the judgment of the first-instance court. On 7 March 2006 the Muğla Criminal Court found the applicant guilty and sentenced him to one month and twenty days’ imprisonment and a fine. However, pursuant to Section 6 of the Execution of Sentences Act (Law no. 647), the court decided to suspend the applicant’s sentence considering that he did not show any tendency to break the law again.

On 30 March 2006 the applicant appealed against this judgment. According to the information in the case file, the proceedings are still pending before the Court of Cassation.

4. Facts concerning the compensation proceedings brought by the applicant pursuant to Law No. 466

On 15 November 2000 the applicant brought an action before the Muğla Assize Court and requested pecuniary and non-pecuniary compensation for his unjustified detention on remand between 30 October 1997 and 18 November 1997.

On 10 January 2001 with reference to the applicants’ personal, social and financial situation, the Muğla Assize Court awarded non-pecuniary compensation to the applicant and rejected his pecuniary damage claims. The court held that, although the applicant had been in detention, he had not been dismissed from his job and had not therefore sustained any pecuniary damage.

The applicant appealed, arguing that the amount of compensation awarded was not sufficient. On 18 September 2002 the Court of Cassation upheld the judgment of the assize court.

On 13 January 1999 the applicant, who had been working as a postman, passed an exam to obtain a post as a civil servant at the Directorate General of Post, Telegraph and Telephone (PTT). Although he succeeded, he was not appointed to a new post. Subsequently, on 17 May 2001, the applicant applied to the PTT and requested that he be so appointed. On 13 July 2001 his request was rejected. Contesting the refusal of the PTT to appoint him to a new post, the applicant initiated proceedings in the Muğla Administrative Court. On 19 September 2002 the court found in favour of the applicant and annulled the decision of the PTT refusing to appoint him. On 7 February 2003 the applicant was appointed to his new post. On an unspecified date, the applicant initiated a second set of proceedings before the Muğla Administrative Court and requested the payment of his monthly salaries and related monetary entitlements for the periods during which he had been entitled to assume his duties in accordance with the judgment of the domestic courts upholding his claim. On 31 March 2004 the Muğla Administrative Court ruled in the applicant’s favour and awarded him pecuniary compensation. On 9 May 2005 the Supreme Administrative Court upheld the judgment of the Muğla Administrative Court.

The applicant made complaints in respect of the five different proceedings set out above.

He complained in the first place that he had been subjected to ill-treatment while in police custody on 29 and 30 October 1997. In this respect, he alleged that he had been beaten and threatened by the police officers. He further complained that there was no effective domestic investigation into his allegations of ill-treatment. He invoked Articles 3 and 14 of the Convention in this respect.

The applicant complained under Article 6 of the Convention that he did not have a fair trial during the above-mentioned domestic proceedings.

The applicant also invoked Article 11 of the Convention claiming that he had been harassed on account of his trade union membership.

Finally, without referring specifically to any Article of the Convention, the applicant complained that he had suffered financial loss due to the refusal of the authorities to appoint him to a new post.

The Court considers that the applicant’ complaint should be examined from the standpoint of Article 3 alone.

It further considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complained under Article 6 of the Convention that he did not receive a fair trial before the domestic courts.

a. Concerning the proceedings which were brought by the applicant pursuant to Law No. 466 and the administrative proceedings concerning his appointment to a new post

The Court recalls that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions of domestic courts. According to the case-law, the latter are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235 B, pp. 32-33, § 32; Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247 B, § 34).

In the present case, it is observed that the national courts’ decisions were given on the basis of domestic law and the particular circumstances of the cases. The Court finds no element to conclude that the domestic courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the domestic law. There is therefore no appearance of a violation of Article 6 § 1 in this respect.

In the light of the foregoing, the Court finds that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court observes that the applicant complains about the fairness of the two criminal proceedings which were brought against him before the Muğla Assize Court. It recalls in this connection that the first set of proceedings ended with the acquittal of the applicant. Thus, any alleged unfairness in his trial must be considered to have been rectified by the judgment acquitting him. As a result, he can no longer claim to be a victim of the alleged violation (Ketenoğlu v. Turkey, nos. 29360/95 and 29361/95, §§ 36-37, 25 September 2001). It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The second set of criminal proceedings, in which the first instance court decided to suspend the applicant’s sentence, is still pending before the Court of Cassation. As a result, this part of the application is premature and should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

The Court notes that none of the proceedings brought against the applicant concerned his trade union membership. There is nothing in the case file to support the applicant’s allegations in this respect. It therefore finds that the applicant’s submissions under Article 11 are unsubstantiated and should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court considers that this complaint should be examined from the standpoint of Article 1 of Protocol No. 1.

In the present case, the applicant passed an exam to obtain a post as a civil servant at the PTT. Although he succeeded, he was not immediately given a new job. However, it is clear from the documents in the file that the applicant was appointed to his new post on 7 February 2003 and that the administrative courts awarded him pecuniary compensation for his monthly salaries and related monetary entitlements for the period during which he had been entitled to assume his duties. As a result, there is no appearance of any violation of the applicant’s rights under Article 1 of Protocol No.1 of the Convention.

It follows that this part of the application should also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

Decides to adjourn the examination of the applicant’s complaints concerning Article 3 of the Convention;

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