CASE OF ÜLGER v. TURKEY
Preliminary objections dismissed (non-exhaustion of domestic remedies;six month period);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
5. The applicant was born in 1955 and lives in Ankara. 6. He worked in a construction yard in Russia for a Turkish Company, YAPITEK Construction, Industry and Commerce Limited Corporation (hereinafter “the company”), from 14 October 1996 until 9 May 1998. 7. On 28 June 1999, the applicant brought a case against the company before the Ankara Labour Court. He claimed that the company had made him stay and wait for four months in Turkey where he had returned for a holiday. However, he was neither sent back to Russia nor given work in Turkey. He submitted that no payment had been made to him concerning his salary for this period and that he had not been notified of the termination of his contract. He requested the court to rule on his unpaid salary and compensation for the length of his service (kıdem tazminatı) and the lack of any dismissal notice (ihbar tazminatı), together with interest. 8. On 1 July 1999 the court made the first examination on the case file and decided to hold a hearing on 5 October 1999, before which date the company was required to submit its replies, with any evidence. 9. The defendant did not appear at the hearings of 5 October and 18 November 1999 although the summons had been duly served. 10. On 27 January 2000 the court took evidence from two of the witnesses whom the applicant wished to have examined, who were his co-workers at the construction yard. The applicant's lawyer stated that they would ensure that a third witness would be present at the next hearing. 11. On 21 March 2000 the court heard the third witness. At the end of the hearing, the court decided to obtain an expert report and, accordingly, sent the case file to the expert after the necessary fee had been deposited by the applicant. 12. The first expert report dated 12 April 2000 stated that the company was liable to pay the applicant compensation for his length of service, for non-notification of the termination of his contract and for his unpaid salary. The amounts due were also assessed in the report. 13. On 28 April 2000 the applicant's lawyer objected to the report, claiming that the amounts were insufficient and requesting that it be reviewed by another expert. 14. On 4 May 2000, the court decided to obtain an additional expert report from the same expert once an additional fee had been deposited by the applicant. Accordingly, a second report was prepared by the same expert and submitted to the court. This report stated that the claim made by the applicant's representative was valid in respect of the amount of compensation for his length of service. This should have been in the sum of 787.5 US dollars. The applicant's lawyer challenged that report and requested a further assessment, to be made by another expert. 15. The applicant's representative did not attend the hearing on 20 June 2000. The court decided to discontinue the proceedings unless a request for resumption was put before it. Upon the request by the applicant's lawyer, the case was reinstated on 26 June 2000 and a hearing was scheduled for 13 July 2000. 16. On 13 July 2000 the court decided that, if the necessary fees were deposited by the applicant within three days, an order would be sent to the defendant requesting payslips showing that the applicant had been paid a salary for five months after he had returned to Turkey. The company would be warned that, unless these payslips were provided, it would be assumed that no salary had been paid. The hearing was postponed to 5 October 2000. The defendant company did not respond to the order despite the formal warning. 17. On 5 October 2000 the court decided to obtain another expert report, the cost of which was to be paid by the applicant. The report, in which the abovementioned five-month period had been taken into account, was submitted to the court on 27 November 2000. 18. On 18 January 2001 the applicant's lawyer requested that another case pending before the court, which was grounded on the same facts and in which additional compensation had been claimed, be joined to the present case. The court decided to join the proceedings as requested and postponed the hearing to 13 March 2001. 19. On 13 March 2001 the Ankara Labour Court awarded the applicant 9,424.50 US dollars in total in compensation for the length of his service, the lack of dismissal notice and his unpaid salary. In the judgment, it was stated that the proportionate court fee for the judgment was 524,190,700 Turkish liras. This fee, less the amount paid by the applicant at the beginning of the proceedings, was to be borne by the defendant company. 20. On 22 May 2001 the court ordered the bailiffs' tax office to levy the court fee from the company. 21. On 10 December 2001 the applicant's lawyer submitted a petition to the court, in which she requested that the judgment be served on her to enable the commencement of enforcement proceedings. She stated that the applicant had won his case whilst the defendant company, in addition to the payment of compensation, had been held liable for the legal costs and charges. She pointed out the risk that the company, which had a known address at the time of the judgment, would attempt to evade its obligations by moving elsewhere, on account of its financial crisis. She further maintained that the applicant would be willing to pay the court costs in order to obtain the judgment, but did not have sufficient means to do so. 22. On the same day the court rejected this request on the ground that it was impossible under Article 28 (a) of the Law on Charges (Law no. 492) to serve a copy of the judgment unless the court costs had been discharged. 23. The applicant was therefore unable to bring enforcement proceedings in order to have the abovementioned judgment executed. In the meantime, the company has apparently relocated. 24. The relevant Articles of the Law on Charges (Law no. 492 of 2 July 1964) read as follows: “The proportional charges set out in scale no.1 shall be paid within the following periods: (a) One quarter of the charges for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment's delivery. The writ shall not be served on the party concerned unless the [court] charges for the judgment and a writ of execution are paid....” “As long as the relevant charges for the judicial processes are not paid, the subsequent processes shall not be executed. If the charges which were not paid by the party concerned are paid by the other party, the process shall be continued and the amount shall be taken into consideration in the judgment without the need for any request to this effect.” “Charges not paid within the periods foreseen in this Law shall be notified by the court or legal office to the relevant tax office within fifteen days from the expiry of the abovementioned time-limit, and the charges shall be recuperated by the tax office. This order shall include the nature and amount of the charge and the tax-payer's details, including the address.”