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SECOND
SECTION
CASE OF EYÜP KAYA v. TURKEY
(Application
no. 17582/04)
JUDGMENT
STRASBOURG
23
September 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Eyüp Kaya v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Antonella Mularoni,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17582/04) 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 Eyüp Kaya (“the
applicant”), on 26 April 2004.
- The
applicant was represented by Mr M. Timur, a lawyer practising in Van.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
18 September 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in Van.
- On
29 August 2000 the applicant was admitted to the military service.
- On
7 September 2001 he went to see a doctor at the Sivas Military
Hospital for an eye-sight problem. His medical report stated that he
had
6, 25 of myopia (nearsightedness), +0,25 of
hyperopia (farsightedness) and – 6,75 of anisometropia
amblyopia (difference in refractive error between the two eyes
leading to reduced vision in one eye) on his left eye. The report
noted that the applicant had complained that he had had the problem
on his left eye since childhood. Accordingly, the applicant was
discharged from the military as he was no longer eligible for
service.
- On
17 March 2003, the applicant applied to both, the Retired Civil
Servant’s Fund for a pension and to the Compensation Commission
at the Ministry of the Interior for compensation. Both requests were
rejected.
- On
21 May 2003 the applicant obtained a certificate from the office of
the headman (muhtarlık) attesting his indigence.
- On
5 June 2003, the applicant brought an action against the Ministry of
the Interior before the Supreme Military Administrative Court
requesting compensation of 30,000,000,000 Turkish liras (TRL).
In his petition the applicant alleged, inter alia, that he had
no such eye problems prior to his service in the army. He further
referred to the doctrine of “social risk”, which did not
require the establishment of any causal link between the harmful
action and the loss. The applicant also requested legal aid to cover
the payment of the court fees.
- On
24 July 2003 the Supreme Military Administrative Court, after
examining the case file and hearing the observations of the
rapporteur, dismissed the applicant’s request for legal aid on
the ground that the case was not well founded.
- On
25 July 2003, the Supreme Military Administrative Court notified the
applicant that he was required to pay a court fee which was
TRL 476,970,000 (approximately 292 euros).
- In
the meantime, on 19 August 2008, the applicant was examined by
doctors at Van State Hospital. The latter confirmed that the
applicant had strong myopic degeneration (-8 degrees) in his left eye
amounting to 37 % of loss of sight.
- On
12 November 2003, the court discontinued the proceedings on the
ground that the applicant failed to pay the necessary court fees.
- On
20 December 2003 the applicant was notified of this decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the Bakan v. Turkey judgment (no. 50939/99,
§§ 36-40, 12 June 2007).
- Court
fees are based on a percentage (0, 13 %) of the value of the claim in
question.
- In
June 2003, the minimum wage in force was 306,000,000 Turkish liras
(approximately EUR 187) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained, in substance, that he was denied access to a
court on account of the domestic court’s refusal to grant him
legal aid. The applicant invoked Article 6 § 1 of the
Convention, which, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government provided explanation as regards the legal aid system in
Turkey and, in particular, the calculation of the court fees. They
maintained that, in the instant case, the domestic court did not
decide on the issue as to whether the applicant was unable to pay the
court fees since his request for legal aid had been refused on the
ground that he did not submit evidence to support his allegations. In
this connection, the Government pointed out that the applicant, who
allegedly did not have sufficient means to meet the court fees, had
enough means to pay for a lawyer.
- The
applicant did not submit any observations on the merits of the
complaint.
- The Court refers to the general principles established
in its case-law concerning access to a tribunal within the meaning of
Article 6 § 1 of the Convention and, more specifically, the
requirement to pay court fees (see, in particular, Kreuz
v. Poland, no. 28249/95, §§ 52-57, ECHR 2001-VI and the
further references therein, and Mehmet and Suna Yiğit v.
Turkey, no. 52658/99, §§ 33-34, 17 July
2007).
- It
notes that the applicant, in view of the value of its claim, was
required to pay TRL 476,970,000 as court fees. While the amount, in
itself, cannot be considered excessive, the Court accepts that the
applicant, who had obtained a certificate attesting to his indigence,
did not have sufficient means to pay them. In this connection,
contrary to the Government’s assertions, the Court considers
that the mere fact that the applicant had hired a lawyer to pursue
the compensation proceedings does not mean that he had the means to
pay the court fees (see Mehmet and Suna Yiğit, cited
above, § 37). However, the applicant’s request for
legal aid was refused by the domestic court on the ground that he did
not have a well founded case, an assessment on the merits of the
case, which resulted in the applicant desisting from his claim and in
his case never being heard by a court.
- The
Court observes that it has already examined the similar grievances in
the past and has found a violation of Article 6 § 1 of the
Convention on the ground, inter alia, that the legal aid
system in Turkey fails to offer individuals substantial guarantees to
protect them from arbitrariness (see, in particular, Bakan v.
Turkey, no. 50939/99, §§ 74-78, 12 June 2007,
Amaç and Okkan v. Turkey, nos. 54179/00 and
54176/00, § 66, 20 November 2007, and Mehmet Hüsni
Tunç v. Turkey, no. 20400/03, § 29,
21 February 2008).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- Consequently,
the Court concludes that there has been a disproportionate
restriction on the applicant’s right of access to a court.
There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Articles 3, 4, 13 and 14 of the
Convention that he lost a significant amount of his sight because of
the heavy forced labour he had undertaken during his military
service. He further maintained that there were no effective remedies
to sue the liable persons and that he was discriminated against
because of his Kurdish origin.
- The
applicant submitted neither an explanation nor documentation in
support of his allegations under these heads. It follows that this
part of the application must also be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed, in total, 200,000 euros (EUR) in respect of
pecuniary and non-pecuniary damages.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court considers that the finding of violation constitutes in itself
sufficient compensation for any non-pecuniary damage suffered by the
applicant (see, mutatis mutandis, Ertuğrul Kılıç
v. Turkey, no. 38667/02, § 28, 12 December
2006.
B. Costs and expenses
- The
applicant also claimed, in total, EUR 55,000 for the costs and
expenses incurred before the Court.
- The
Government contested the amounts.
- The Court finds that since the applicant submitted no
justification as regards costs and expenses, as required by Rule 60
of the Rules of Court, it makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 §
1 of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
