PROCEDURE

The case originated in an application (no. 29840/03) 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, Mr Hasan Erkan, on 15 August 2003.

The applicant was represented before the Court by Ms Arzu Becerik, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not appoint an agent for the purpose of the proceedings before the Court.

On 24 March 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1927 and lives in Yalova. He worked as a teacher and retired on 3 September 1973. On 31 October 1991 he completed a pre-undergraduate (önlisans) course at Anadolu University.

On 19 February 1992 the applicant applied to the Directorate of Education in Istanbul (Milli Eğitim Müdürlüğü) and requested to be reassigned to a post as a teacher. Since he had obtained a higher education diploma, he expected to be promoted to a higher grade for each year of work as a teacher, in accordance with Article 36 of the Law on Civil Servants (Law No. 657). This, in turn, would entitle him to a higher pension.

On 5 May 1992 the Ministry of Education appointed the applicant to the post of primary school teacher in Kartal district of Istanbul. This decision was sent to the Kartal District Governor (Kaymakamlık) on 26 May 1992 but not communicated to the applicant.

On 7 August 1992 the applicant once again applied to the Istanbul Directorate of Education and found out about the decision of 5 May 1992. On 10 August 1992 he started working as a teacher.

On 1 October 1992 the applicant's contract was terminated by the Ministry of Education on the ground that when he started to work he was over the age of 65, i.e. the compulsory retirement age in Turkey. Furthermore, the days he worked from 10 August 1992 until 1 October 1992 were not added to the total period of his service. As a result, the applicant could not advance to a higher grade.

On 17 January 1993 the applicant filed an action before the Ankara Administrative Court and asked for the days he worked in 1992 to be taken into account when calculating the total period of his service. He also stated that the reason for him to start working after he was over the age of sixty-five had been the failure of the authorities to communicate him the decision concerning his assignment.

On 22 December 1994 the Ankara Administrative Court dismissed his request. The applicant appealed on 5 May 1995 but did not pay the necessary appeal fees until 3 August 1995.

On 27 April 1998 the Council of State quashed the judgment of the Ankara Administrative Court. In the opinion of the Council of State, the applicant should have been considered as a civil servant on the day of the appointment and not on the day of his actually taking up his duties.

On 7 October 1999 the Administrative Court rendered its decision in which it insisted in its decision of 22 December 1994. The Administrative Court considered that the applicant could only be considered as a civil servant on the day he actually started to work, and not on the day of his appointment. It further stated that awarding the statutory rights (özlük hakları) to civil servants before they begin their service had no legal basis in domestic law. In the light of the aforementioned considerations, the court ruled that the applicant did not have the right to advance to a higher grade. The applicant appealed against this decision on 19 January 2000 but did not pay the necessary court fees until 23 May 2000.

On 15 November 2002 the Joint Council of the Council of State's Administrative Chambers (Danıştay İdari Dava Daireleri Genel Kurulu) upheld the first-instance court's judgment. This decision was served on the applicant on 17 February 2003.