Individual Application

The Facts

The applicant, a mukhtar, who had been detained within the scope of an investigation, was acquitted at the end of the proceedings. The acquittal decision became final without appeal. The applicant filed a claim for damages against the State Treasury. The assize court awarded compensation to the applicant. During the subsequent appeal proceedings, the Court of Cassation stated that the applicant should apply to the administration and then to the administrative courts for the loss of income sustained by him due to the alleged non-payment of his salary for the period when he was held in detention.

The applicant applied to the Local Administrations Office, seeking the payment of his unpaid salaries. The Special Provincial Administration dismissed the applicant’s request on the ground that it was not possible to make payment for the period spent in detention pursuant to the Regulation on the Payment of Allowances to the Mukhtars (“the Regulation”).

The applicant brought an action against the Special Provincial Administration. The administrative court, dismissing the applicant’s case, noted that the applicant was not entitled to the said salary since another person had substituted him as mukhtar. The applicant’s appeal as well as his subsequent request for rectification were rejected.

The Applicant’s Allegations

The applicant claimed that his right to property had been violated due to the non-payment of his salary as a mukhtar for the period when he was held in detention.

The Court’s Assessment

Following the finalisation of the acquittal decision, the applicant successfully brought an action for compensation for the pecuniary and non-pecuniary damages he had sustained pursuant to Law no 5271. However, the applicant was denied to receive his salary as a mukhtar for the period when he was held in detention. Thereupon, the applicant brought an administrative action.

The applicant, who had been elected as a mukhtar, was entitled to receive salary as a mukhtar in accordance with Law no. 2108. It has also been found that since the applicant was acquitted, the losses he had sustained during his detention must be compensated. Accordingly, it has been accepted that the applicant had a legitimate expectation that the said damages would be compensated and that thus he would receive his unpaid salaries.

The administrative courts, interpreting the relevant Regulation, but in the absence of a provision of law, dismissed the applicant’s request. However, the applicant had not left the office on his own accord for such reasons as a health problem or leave, as stated in the relevant Regulation.

The inferior courts, interpreting the relevant provisions, failed to consider the reason why the applicant had had to leave the office. It was legally obligatory to pay the applicant’s salary, and in this regard, there was no restriction to the contrary. Even if the relevant Regulation is taken into consideration, it should not be ignored that the applicant had been forced to leave his office against his will.

Although it was accepted that the damages sustained by the applicant due to his detention should be compensated in accordance with the relevant legal provisions, the authorities failed to submit reasonable grounds for denial of the payment of the said salaries to the applicant. Non-payment of the unpaid salaries to the applicant due to the strict interpretation of the relevant provisions of the Regulation as well as the relevant legal provisions by the inferior courts placed an excessive burden on the applicant. The fair balance to be struck between the protection of the right to property and the public interest pursued by the interference was upset to the detriment of the applicant. Hence, the impugned interference had been disproportionate.

Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.