CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 novembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .sD31AF07F { height:94.25pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s7FFADA32 { font-family:Arial; font-size:11pt; font-weight:bold; color:#474747 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE512A940 { font-family:Arial; color:#474747 } .s10776D70 { height:43.85pt } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s69B44500 { height:33.5pt } .s68284500 { height:33.9pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 18 December 2023   SECOND SECTION Application no. 43545/20 Ömer Faruk PALA against Türkiye and 2 other applications (see list appended) communicated on 27 November 2023 SUBJECT MATTER OF THE CASE The applicants are civil servants who have succeeded in an exam to advance to the post of labour auditor. As their requests to be appointed to that post have been implicitly rejected by the administrative authorities, they brought proceedings before administrative courts seeking the annulment of the administration’s implicit rejection and compensation corresponding to the difference in salary between their current post and the post of labour auditor, to be calculated from the date when their advancement became due. On the dates specified in the Appendix, the administrative courts considered the prolonged inactivity of the administrative authorities in the appointment of the applicants to be unlawful. The courts further ordered the administration to pay the applicants, with interest, the difference in salary between their current and prospective posts as well as other pecuniary elements effective from the date when their appointments would be made and calculated retroactively from the date when they made a request with the administrative authorities for their appointments. The applicants unsuccessfully appealed against the first-instance courts’ decision before appellate courts, complaining of conflicting conclusions reached by the administrative courts in identical cases with respect to the date from which the difference in salary and other pecuniary elements were to be calculated. They submitted in that connection that the Supreme Administrative Court had held in other cases brought by assistant auditors that the salary difference would be calculated from the date when their advancement became due and not from the date of their administrative request. Notwithstanding the administrative court decisions in their favour, the applicants were not appointed to the posts in question within the 30-day time-limit set out in the law for the enforcement of administrative court decisions. Therefore, they brought individual applications before the Constitutional Court, complaining, inter alia , about the non-enforcement of court decisions in their favour and the alleged inconsistency in the case-law of the administrative courts. On various dates the Constitutional Court declared the applicants’ applications inadmissible finding their complaints under Article 6 § 1 of the Convention to be manifestly ill-founded and those under Article 1 of Protocol   No.   1 to be incompatible ratione materiae with the provisions of the Convention . The applicants were appointed to the post of labour auditor on 23   June 2021. On 17 February 2023 the applicants informed the Court that the Constitutional Court had delivered a leading decision on 3   February 2023 finding that the administrative courts had given conflicting decisions regarding the date from which the difference in salary and other pecuniary elements were to be calculated in the cases of labour auditors awaiting appointment and that this state of affairs had run counter to the principle of legal certainty and resulted in a violation of Article 1 of Protocol No. 1 to the Convention. The Constitutional Court ordered the reopening of the proceedings for the claimants concerned by its decision. The applicants complain under Article 6 § 1 of the Convention and Article   1 of Protocol No.   1 to the Convention in conjunction with Article   14 that the proceedings brought by them in order to be appointed to the post of labour auditors were unfair in so far as they were discriminated against in comparison with other persons in their situation because of the conflicting case-law on the issue and that they have been wrongfully deprived of their right to salary difference and allowances. The applicant in application no. 50430/20 further complains under Article   6 of the Convention about the delayed enforcement of the administrative court decision in his favour. QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as similar actions before the domestic courts had different outcomes with respect to the date to be taken into account for the calculation of a salary difference? In particular, was the principle of legal certainty, as developed in the Court’s case-law in the interpretation of Article   6 of the Convention (see, for instance, Lupeni Greek Catholic Parish and Others v. Romania [GC], no.   76943/11, § 116, 29   November 2016; Hayati Çelebi and Others v.   Turkey , no. 582/05, § 52, 9   February 2016; and Petrescu and Others v.   Romania (dec.), no.   31390/18 and   9   others, §§ 54-55, 7 March 2023), complied with by the domestic courts?   2.     Has the inconsistent approach taken by the domestic courts in the applicants’ cases, as opposed to other similar cases, constituted an infringement of the applicants’ right to the peaceful enjoyment of their possessions protected by Article 1 of Protocol No. 1 to the Convention, in particular of their alleged right to obtain the salary difference and other pecuniary elements effective from the date when their advancement to the post of labour auditor became due (see, mutatis mutandis , Ştefănică and   Others v. Romania , no. 38155/02, §§ 41-42, 2 November 2010, and Brezovec v. Croatia , no. 13488/07, §§ 66-68, 29 March 2011)?   3.     As regards application no. 50430/20, has there been a violation of Article   6 §   1 of the Convention on account of lengthy enforcement of the administrative court decision in that applicant’s favour (see Burdov v.   Russia , no.   59498/00, § 35, ECHR 2002‑III)?   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence     Represented by Date of announcement of exam results for the labour auditor post       Date of administrative request Date of final administrative court decision 1. 43545/20 Pala v. Türkiye 29/09/2020 Ömer Faruk PALA 1984 Ankara Özge TEKE         06/08/2014 01/02/2018 13/02/2019 2. 50430/20 Yaşar v. Türkiye 09/11/2020 Sadi YAŞAR 1986 Istanbul   Özge TEKE 24/04/2017 17/08/2018 20/09/2019 3. 11506/22 Ünal v. Türkiye 25/02/2022 Özgün ÜNAL 1980 Ankara   Özge TEKE 06/08/2014 24/09/2018 28/12/2020