CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 janvier 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s2DED9654 { width:26.12pt; display:inline-block } .s94770B6B { width:149.1pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 50702/18 Nazan AKIN PEKER against Turkey   The European Court of Human Rights (Second Section), sitting on 22   January 2019 as a Committee composed of:   Paul Lemmens, President,   Jon Fridrik Kjølbro,   Ivana Jelić, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 23 October 2018, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Nazan Akın Peker, is a Turkish national, who was born in 1959 and lives in Kocaeli. She was represented before the Court by Mr M. Alsan, a lawyer practising in Ankara. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On an unspecified date in 2000, the applicant retired from her position at a bank, namely Vakıflar Bankası Türk Anonim Ortaklığı (hereinafter “Vakıfbank”). On 1 May 2000 she started receiving a retirement pension from the Vakıfbank Employees’ Retirement and Health Fund (hereinafter “the Employee Fund”), a private pension fund which covered all of the bank’s staff. 4.     On 26 November 2010 the applicant initiated proceedings before the Ankara Labour Court, requesting an increase in her monthly pensions. She argued that although the contributions she had made to the Employee Fund had been significantly more than those made by persons affiliated to the Social Security Institution - the public social security fund – her retirement pensions had not been subject to the same increase rates as those provided by the latter, despite the relevant provisions and the statute of the Employee Fund to that effect. 5.     On 9 October 2012 the Labour Court dismissed the case. The court pointed out that a new paragraph which had been added to provisional section 20 of the Social Security Act (Law no. 506) in 2011 provided that the calculation of the minimum level indicated in paragraph 1(b) of that section would be made by comparing the amounts received in equivalent situations. In view of that change in the legislation and referring to previous decisions of the Court of Cassation in cases raising the same issue, the court found that the amount of the retirement pension paid to those affiliated to the Employee Fund was substantially higher than the amount paid to persons affiliated to the Social Security Institution and that, accordingly, the applicant could not obtain an increase in her pension. 6.     On 16 April 2013 the Court of Cassation upheld the judgment. 7.     On an unspecified date the applicant filed an individual application with the Turkish Constitutional Court. She complained of a violation of her right to a fair trial and her right to property, arguing that the retrospective application of the additional paragraph of provisional section 20, which had entered into force during the course of the proceedings she had initiated, had constituted legislative intervention. 8.     On 21 March 2018 the Constitutional Court found a violation of the right to a fair trial of the applicant and 413 others who had filed applications on the same matter. It found that the change in the legislation aimed to definitively settle, in a retroactive manner, the substance of the cases brought by the people affiliated to the Employee Fund, which, in view of the case-law of the Grand Chamber of the Court of Cassation’s Civil Division ( Yargıtay Hukuk Genel Kurulu - see paragraph 11 below), would have concluded in their favour had the new provision not entered into force. As regards the complaints concerning property rights, the Constitutional Court held that there was no need to make a separate ruling in view of its finding of a violation of the right to a fair trial. Lastly, it dismissed the compensation claims, finding that the most appropriate form of redress would be the reopening of cases for an assessment on the basis of the legislation before the entry into force of the impugned provision. It also held that 102 people represented by the same lawyer, including the applicant, would be paid a total sum of 1,980 Turkish liras in respect of legal fees. B.     Relevant domestic law and practice 9.     The relevant parts of provisional section 20 of the Social Security Act (Law no. 506), reads: “The employees of banks, insurance companies, chambers of trade and industry, stock exchange markets or unions formed by these institutions, which have established a fund for their own employees’ retirement or death pensions, shall not be subject to the provisions of this Act if those funds submit within six months their statutes fulfilling the following conditions: (a)     The fund shall cover all employees of the institution; (b)     In case of accident, disease, maternity, disability, retirement and death, the fund shall provide, at the very least, the benefits provided by this Act; ... (Additional paragraph of 13 February 2011) The minimum benefits under paragraph 1(b) shall be calculated on the basis of a comparison made between amounts received in equivalent situations... This provision shall be applied to the pending proceedings and to the increases that have been made before its entry into force.” 10.     In line with provisional section 20 of the Social Security Act, the statute of the Vakıfbank Employee Fund provided that the Fund would provide its members with benefits which would not be less than those provided by the Social Security Act. 11 .     In a decision dated 24 March 2010 the Grand Chamber of the Court of Cassation’s Civil Division established in relation to a separate set of proceedings that in determining the minimum amount of benefits under paragraph 1(b) of provisional section 20, the calculation must be made by comparing the increase rates of the Employee Fund by the rates applied by the Social Security Institution. In case the rate of the Employee Fund was less than that provided by the Social Security Institution, those concerned would benefit from the provisions of the Social Security Act regarding the increase rates. COMPLAINTS 12.     The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the retroactive application of the new provision to her case. In that connection she also complained about the Constitutional Court’s dismissal of her compensation claim, arguing that the reopening of her case would not provide adequate redress for the violation of her rights to fair trial and property. 13.     The applicant further alleged that the decision of the Constitutional Court had violated her right to property in that it had rejected her complaint for being incompatible ratione materiae , finding that she had not had a legitimate expectation. 14.     Lastly, she argued that the Constitutional Court’s decision to join the applications and to award a total amount for 102 people in respect of legal fees had violated her right to peaceful enjoyment of her possessions, as she had signed a separate contract with her lawyer and would be bound to pay the legal fees by herself. THE LAW A.     Article 6 § 1 of the Convention 15.     The applicant argued under Article 6 § 1 of the Convention that her right to a fair trial had been violated on account of the retroactive application of additional paragraph of provisional section 20 of the Social Security Act and the Constitutional Court’s refusal to award her compensation despite its finding of a violation of her right to a fair trial. 16.     The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive her of her status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, among other authorities, Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; Dalban v. Romania [GC], no.   28114/95, § 44, ECHR   1999 ‑ VI; and Cocchiarella v. Italy [GC], no.   64886/01, §§ 71-2, ECHR 2006 ‑ V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003, and Albayrak v. Turkey , no. 38406/97, § 32, 31 January 2008). 17.     In the present case the Court notes that, as pointed out by the applicant herself, the Constitutional Court found a violation of the applicant’s right to a fair trial on account of the legislative intervention, namely, the entry into force of additional paragraph of provisional section 20 of the Social Security Act during the course of the proceedings, which definitively settled the substance of the dispute between the applicant and the Employee Fund. Accordingly, the first condition regarding the loss of victim status, that is, the national authorities’ acknowledgement of the violation of the Convention right invoked by the applicant, has been satisfied. 18.     There remains the question whether the redress provided by the Constitutional Court was appropriate and sufficient in order to remedy the breach of the Convention right at national level. The Court reiterates that it has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010). 19.     Turning to the present case, the Court observes that after having found a violation of the applicant’s right to a fair trial, the Constitutional Court held that the most appropriate form of redress would be the retrial of her case on the basis of the provisions which had been in force when the applicant had initiated proceedings in 2010. The Court has held in a number of cases, where it found a violation of the right to a fair trial, that the reopening of the proceedings in accordance with the requirements of Article 6 of the Convention would be an appropriate form of redress (see, among other authorities, Okan Güven and Others v. Turkey , no. 13476/05, § 110, 14   November 2017, and the cases cited therein). It concludes therefore that the national authorities have provided adequate redress for the violation of the applicant’s right to a fair trial. 20.     Consequently, the Court finds that the applicant cannot claim to be a victim of a violation of Article 6 of the Convention. It follows that this part of the application is inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. B.     Article 1 of Protocol No. 1 to the Convention 21.     In so far as the applicant claimed a violation of her right to peaceful enjoyment of property on account of the Constitutional Court’s alleged rejection of her complaint for incompatibility ratione materiae , the Court notes that the Constitutional Court did not reject the applicant’s complaint about the violation of her right to property, but instead, found no need to examine that complaint separately in view of its finding of a violation of her right to a fair trial. 22.     In that connection, the Court points out that the applicant’s complaint before the Constitutional Court regarding her property rights concerned the same issue that was examined from the standpoint of the right to a fair trial, namely, the legislative intervention during the course of the proceedings brought by the applicant against the Employee Fund. As mentioned above, the Constitutional Court found a violation of the applicant’s right to a fair trial, which provided her with an opportunity to have her case reopened before the Labour Court. The Court observes, however, that the applicant did not submit any information as regards that point and consequently, there is nothing in the case file to indicate that she filed a request for the reopening of the proceedings. 23.     Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. 24.     As regards the complaint concerning the Constitutional Court’s decision to award a lump sum to the applicants who were represented by the same lawyer, the Court reiterates that where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301 ‑ B; Kopecký v. Slovakia [GC], no. 44912/98, §§ 49 and 52, ECHR 2004 ‑ IX; and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 142, 20 March 2018). The Court has also referred to claims in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia , Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002 VII, and Kopecký , cited above, § 35). However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Kopecký , §§ 45-53, and Radomilja , cited above, § 143). 25.     In the absence of any legal basis for the interest at issue, the Court considers that the applicant’s claim to obtain the total amount awarded as legal fees did not constitute an asset which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention. 26.     It follows that the complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 February 2019.   Hasan Bakırcı   Paul Lemmens   Deputy Registrar   President