I incorrectly predicted that there's no violation of human rights in KESKİN v. TURKEY.

Judgment

SECOND SECTION

CASE OF ÖZGÜR KESKİN v. TURKEY

(Application no. 12305/09)

JUDGMENT

STRASBOURG

17 October 2017

FINAL

17/01/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Özgür Keskin v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Julia Laffranque, President,Işıl Karakaş,Nebojša Vučinić,Paul Lemmens,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar,
Having deliberated in private on 19 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12305/09) 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”) by a Turkish national, Özgür Keskin, (“the applicant”), on 7 February 2009. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. On 6 December 2012 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1974 and lives in İzmir. 5. On 18 June 1998 the applicant started working for a company owned by İzmir City Council (“the City Council”). On 19 March 2007 he resigned from his job to perform his military service. 6. On 12 April 2007 the applicant was paid 16,985 Turkish liras (TRY ‐ approximately 9,200 euros (EUR)) in respect of severance pay and he signed a release (ibraname) discharging the City Council from all liability. 7. Following his discharge from the military on health grounds shortly after he was enlisted, on 20 April and 31 May 2007 the applicant requested his reinstatement in his previous job. However, his requests were rejected by the City Council. 8. On 28 June 2007 the applicant initiated proceedings before the İzmir Labour Court, seeking reinstatement. He relied on clause 19 of the collective bargaining agreement in force at the company (“the collective agreement”), which provided for the reinstatement of employees who had quit their jobs to perform their military service, provided that they applied within three months of their discharge from the armed forces. 9. On 12 September 2007, in a decision rendered orally in the presence of the parties, the İzmir Labour Court found in favour of the applicant. The Labour Court held that the applicant’s discharge from the military shortly after he had been enlisted fell under the provision of the collective agreement, which called for the suspension of the employment contract when an employee was conscripted (silah altına alınma) for reasons other than compulsory military service, such as being recalled to the armed forces in times of war. Therefore it held that the applicant was entitled to be reinstated in accordance with the terms of the collective agreement. The court informed the parties that they could appeal against this decision within the time-limits set out in the applicable procedure. 10. On 18 September 2007 the City Council appealed against the decision and reserved its right to submit additional observations once the reasoned judgment of the first-instance court had been served on it. That appeal was not communicated to the applicant. 11. On 15 October 2007, the registry of the first-instance court forwarded the file to the Court of Cassation for appeal on points of law. 12. On 23 October 2007 the City Council submitted its additional observations. It argued, inter alia, that the first-instance court’s interpretation of the collective agreement had been erroneous. These observations were also not communicated to the applicant. 13. On 21 July 2008, following an examination based on the case file and without holding a hearing, the Court of Cassation quashed the first‐instance court’s judgment and found in favour of the City Council. The Court of Cassation found it established that the applicant had resigned from his job to perform his military service and that he had been paid severance pay. It held that a rejection of the applicant’s request for reinstatement could not be regarded as the termination of the applicant’s employment contract; therefore, the applicant could not technically ask to be reinstated. The Court of Cassation further held that clause 19 of the collective agreement was not directly applicable in the case before it. No appeal was possible against this decision. 14. This decision was served on the applicant on 22 September 2008. II. RELEVANT DOMESTIC LAW AND PRACTICE
15. The relevant provision of the Labour Courts Act (Law no. 5521), as in force at the material time, provided as follows:
Section 7
“Oral procedure shall be applicable to disputes before the labour courts.”
Section 8
“... The time-limit for appealing against a decision of a labour court is eight days, starting from the oral delivery of the judgment in public, or where the judgment is pronounced in a party’s absence, from the date it is served on the parties. A regional assize court or the Court of Cassation shall render a final decision on the appeal within two months. ”
Section 15
“In cases where a provision of this Law is not found to be clear, the provisions of the Code of Civil Procedure shall be applicable.”
16. The relevant provision on the time-limits for finalising the appeal for reinstatement cases is found in the Labour Act (Law no. 4857):
Section 20
“... An employee whose contract of employment has been terminated unjustly may seek reinstatement before the labour court within one month of the notice of termination. ... The claim shall be finalised within two months on the basis of the accelerated judgment procedure. In a case of appeal, the Court of Cassation shall render its decision within one month. That decision shall be final.”
17. Article 433 of the Code of Civil Procedure (Law no. 1086), which was in force at the time of the events, provided as follows:
“The appeal of the appellant shall be communicated to the respondent by the court which has rendered the decision. The respondent may reply to the appeal within ten days of the date of notification. The respondent may nevertheless cross-appeal in his or her reply submissions even if he or she had not lodged an appeal within the required time-limits ...”
18. The Labour Courts Act provided at the material time for an oral and accelerated procedure to be applied in labour disputes. By virtue of section 15 of the Labour Courts Act, the courts have transposed the relevant provisions found in the Code of Civil Procedure to the oral and accelerated procedure in labour disputes. However, the relevant provisions of the Code of Civil Procedure are found only in sections 178 to 426 of the same Code and they do not refer specifically to section 433, which is the provision that provides for the communication of the appeal of the appellant to the respondent and the right of the respondent party to cross-appeal. In the particular context of appeal proceedings against the decisions of labour courts, it is clear from the established case-law of the Court of Cassation that an appeal by one party would not be communicated to the other party and that the respondent party could not cross-appeal in his or her reply submissions (katılma yolu ile temyiz) once the appeal time-limits had passed. Therefore, it was for the respondent to keep him or herself informed by consulting the case file at the court’s registry (see, inter alia, the Court of Cassation’s decisions: E. 1984/1150, K. 1984/2552, 9 March 1984; E. 1985/2323, K. 1985/2464, 18 April 1985; E. 1991/9534, K. 1991/10062, 1 July 1991; E.1995/13744, K. 1995/34388, 20 November 1995; E. 1998/12223, K. 1998/14537, 19 October 1998; E. 2001/18951, K. 2002/4605, 20 March 2002). 19. Owing to recent case-law developments in this area of the law, the practice of non-communication of the appellant’s observations to the defendant has become defunct. In a judgment delivered on 20 March 2014, the Constitutional Court held that in order to ensure that the parties have an effective right of appeal in labour proceedings, the time-limits for appeal should start to run only from the date when the reasoned judgment is delivered to the parties (see no. 2012/1023, § 39). Following this approach the Grand Chamber of the Court of Cassation’s Civil Division (Yargıtay Hukuk Genel Kurulu) further ruled that the appeal of an appellant must be communicated to the defendant, who may cross-appeal in his or her observations (see E. 2014/9-1438, K. 2015/580, 21 January 2015, and E. 2015/7-2488, K. 2015/2187, 30 September 2015). 20. In labour disputes, the Court of Cassation carries out an examination on the basis of the case file without holding a hearing, save in certain circumstances provided for by law. The appeal is limited to points of law. The Court of Cassation gives a final decision without remitting the case to the first-instance court. THE LAW
I. PRELIMINARY ISSUE
21. The Government submitted that contrary to the requirements of Rule 47 § 1 of the Rules of Court, the applicant had not indicated his profession in the application form submitted to the Court. They therefore asked the Court to reject the application for failing to meet the requirements of Article 47 of the Rules of Court. 22. The Court reiterates that it has already examined and dismissed similar objections by the respondent Government (see, for instance, Yüksel v. Turkey (dec.), no. 49756/09, § 42, 1 October 2013; Öner Aktaş v. Turkey, no. 59860/10, § 29, 29 October 2013; and T. and A. v. Turkey, no. 47146/11, § 41, 21 October 2014). In the present case, the Court finds no reason to depart from that conclusion. The Government’s arguments on this point should therefore be rejected. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicant complained that he had been deprived of the opportunity to participate in the proceedings owing to the fact that he had not been notified of the appeal lodged by the City Council. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

24. The Government contested that argument. A. Admissibility
25. The Government submitted that the applicant’s complaint concerning the non-communication of the appeal should be declared inadmissible for the applicant’s failure to observe the six-month time-limit. In this connection they stated that the applicant, who had been present when the Labour Court had delivered its judgment orally, had therefore been in a position to know that the judgment, which had been in his favour, would become final unless the defendant party appealed against it within eight days. After that date the applicant – who had been represented during the entire course of the proceedings by a lawyer – should have been in a position to know that an appeal had been lodged and, had he so wished, he could have lodged his observations in reply to the appeal. If he had been prevented from submitting observations, then he should have introduced his application with the Court within six months of that date. However, he had only applied to the Court on 7 February 2009, that is to say only after the Court of Cassation had handed down its decision. 26. The applicant did not comment on this issue. 27. The Court notes that the proceedings in question ended with the Court of Cassation’s decision of 21 July 2008, by which the dispute between the parties was finally determined. The Court notes that when examining complaints regarding an alleged violation of the right to a fair trial, it must have regard to the proceedings as a whole in order to determine whether the alleged absence of procedural safeguards had an impact on the outcome of the proceedings. Thus, the Court considers that the six-month period in the instant case started running from the date of the Court of Cassation’s decision, which was served on the applicant on 22 September 2008. The applicant lodged his application with the Court on 7 February 2009, that is, to say within the six-month time limit. 28. In the light of the above, the Court considers that the Government’s objection that the applicant submitted his complaints out of time should be dismissed. 29. The Court notes that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
30. The Government submitted that the appeal proceedings before the Court of Cassation regarding labour disputes had not provided for the communication of the appeal of one party to another. They stressed that the non-communication of the appeal had pursued the aim of saving time and reducing costs. They described in detail the special features of labour disputes, in particular reinstatement proceedings, where time was of the essence for a dismissed employee seeking reinstatement in his or her previous position. They explained that by virtue of the oral and accelerated procedure applicable at the material time, the onus had fallen on the party to keep him or herself informed by checking with the court’s registry to verify whether another party had appealed. In this connection, they drew the Court’s attention to the eight-day appeal time-limit running from the oral delivery of a judgment. At the end of that time-limit the applicant would have de facto known whether or not the defendant company had appealed. The applicant therefore had had the opportunity to keep himself informed of the appeal and to submit observations if he had so wished. The Government noted that during the entire course of the proceedings the applicant had been represented by a lawyer who should have known that under the law and established practice, there had been no such duty to communicate the appeal. In that connection they argued that the failure of the lawyer to check the case file at the court’s registry and to keep himself informed of the stage of the proceedings could not be attributed to any fault or omission of the authorities. 31. The applicant contested, in general terms, the Government’s submissions and maintained his arguments. 32. The Court reiterates that the possibility for parties to take part in proceedings flows from the object and purpose of Article 6 of the Convention, taken as a whole (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 76, 4 March 2014). It further reiterates that the principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274, and Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016). The general concept of a fair trial, encompassing also the fundamental principle that proceedings should be adversarial, requires that all parties to civil proceedings should have the opportunity to have knowledge of and comment on the observations submitted or evidence adduced with a view to influencing the court’s decision (see Nideröst-Huber v. Switzerland, 18 February 1997, § 24, Reports of Judgments and Decisions 1997‐I). Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact (see Dilipak and Karakaya, cited above, § 77). What is at stake is the litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria, no. 30428/96, § 18, 6 February 2001). 33. Furthermore, the Court does not call into question the use of accelerated proceedings in certain disputes such as the one at issue seeking to address the demands of efficiency and economy. As its case-law bears out, the Court attaches great importance to that objective, which does not, however, justify disregarding such a fundamental principle as the right to adversarial proceedings. In fact, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber, cited above, § 30). Consequently, it falls within the responsibility of the domestic authorities to ensure that the standards set by Article 6 § 1, and, in particular, the protection of the equality of arms, are respected. 34. The Court notes that it is not disputed in the present case that neither the initial appeal nor the additional observations submitted by the other party in the domestic proceedings were communicated to the applicant. The parties disagree as to whether the onus fell on the applicant to keep himself informed of the appeal proceedings by consulting the case file. 35. The Court observes that, owing to the accelerated procedural rules applicable to the appeal proceedings at the material time, the applicant, who had obtained a judgment in his favour at first instance, had a very specific time-period at the end of which he could have obtained information as to whether the judgment had become final, or alternatively whether the other party had appealed. However, the fact that the applicant could have been aware of the institution of appeal proceedings is not in itself sufficient to conclude that he was given a real opportunity to comment on these proceedings. In that connection, the Court disagrees with the Government’s view that the applicant or his representative had a theoretical right of participating in the appeal proceedings by consulting the case file at the court’s registry. Moreover, regard being had to the fact that there were not one but two sets of submissions lodged by the other party on different dates, neither of which was communicated to the applicant (see paragraphs 10 and 12 above), the Court considers in respect of the second submissions that the applicant was placed at a substantial disadvantage with respect to the respondent, as he could have not anticipated when they would be lodged. 36. With regard to the Government’s submission that the courts at the material time had required parties to keep the track of their case during appeal proceedings, the Court considers that this practice could not have ensured effective participation of the parties to the proceedings (see, mutadis mutandis, Göç v. Turkey [GC], no. 36590/97, § 57, ECHR 2002‐V). In the absence of an official communication from the relevant court notifying the applicant of the appeal and the manner in which he could submit his replies, the applicant was made to bear a situation of procedural uncertainty. In that respect, although the procedural rules relating to the accelerated labour proceedings were silent on the issue of whether the appeal would be communicated to the other party, the Court considers that nothing prevented the national courts from transposing or drawing inspiration from the related provision in the Code of Civil Procedure calling for the communication of documents submitted by one party to the other, to these proceedings (see paragraph 17). In that connection the Court welcomes the new developments in domestic jurisprudence, according to which the appeal of an appellant in accelerated labour proceedings must be communicated to the defendant, which will ensure effective participation of parties in appeal proceedings (see paragraph 19); however, it notes that they cannot affect the applicant’s situation as the previous practice of the Court of Cassation was applicable in the applicant’s case. 37. The foregoing considerations are sufficient to enable the Court to conclude that non-communication of the appeal and submissions to the applicant constituted an infringement of the applicant’s right to equality of arms and adversarial proceedings. There has accordingly been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
38. Relying on Article 11 of the Convention the applicant further complained that the Court of Cassation had disregarded the terms of the collective agreement. Lastly, the applicant complained under Article 13 of the Convention that there had been no effective remedies in domestic law in respect of his complaints. 39. Having regard to the facts of the case and its finding of a violation of Article 6 § 1 of the Convention (see paragraph 37 above), the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s other complaint under Article 11 or on his complaints under Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the cases cited therein). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40. The applicant claimed EUR 40,000 in respect of non-pecuniary damage. He also claimed TRY 1,337.56 (approximately EUR 528) for costs and expenses incurred before the domestic courts. The applicant further claimed TRY 5,000 (approximately EUR 1,975) for his legal representation before the Court. In support of this sum, he submitted a certified invoice. 41. The Government submitted that the applicant’s just satisfaction claims as well as his claims for legal fees were excessive and unfounded. 42. The Court is of the view that the applicant must have suffered non‐pecuniary damage for which the finding of a violation of the Convention in the present judgment is not a sufficient remedy. Judging on an equitable basis, it awards the applicant EUR 1,500 under this head. 43. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,975 for the applicant’s legal representation before the Court. 44. The Court considers it appropriate that the default interest rate 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. Declares the complaint under Article 6 § 1 admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to communicate the cassation appeal to the applicant;

3. Holds that there is no need to examine the admissibility and merits of the complaints under Articles 11 and 13 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros) in respect of non‐pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 1,975 (one thousand nine hundred and seventy-five euros) in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJulia LaffranqueRegistrarPresident