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SECOND
SECTION
CASE OF ALKAN v. TURKEY
(Application
no. 17725/07)
JUDGMENT
STRASBOURG
7
February 2012
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 Alkan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Işıl Karakaş,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17725/07) 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 Necmettin Alkan (“the
applicant”), on 11 April 2007.
- The
applicant was represented by Ms L. Alkan, his mother. The Turkish
Government (“the Government”) were represented by their
Agent.
- The
applicant alleged, in particular, that his right of access to court
had been breached by the domestic court’s refusal to grant him
legal aid.
- On
25 May 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Kars.
- On
13 December 2002, after having completed his military service, the
applicant was placed under the guardianship of his father, S.A., by a
decision of the Sarıkamış Magistrates’ Court as
he was mentally ill and needed constant supervision.
- The
applicant submitted several requests to the gendarmerie command
claiming compensation for his illness which, according to him, began
during his military service as a result of the treatment there. His
requests were rejected on the basis of a medical report from the
Gülhane Military Medical Academy, which indicated that such a
condition could not have been caused merely by military service and
that many other factors could have been involved in its development.
- Subsequently,
under the guardianship of S.A., the applicant initiated compensation
proceedings before the Supreme Military Administrative Court,
claiming that his illness had been caused by the ill-treatment to
which he had been subjected in the army. He argued that his enrolment
for military service after having passed several medical tests was
proof that he had been healthy before. The
applicant requested a total of 200,000 Turkish liras (TRY)
(approximately 100,000 euros (EUR) at the time) in respect of both
pecuniary and non-pecuniary damage, submitting the medical records
from several hospitals in support of his claims. He also requested
legal aid for the court fees, presenting a certificate from the
office of the headman (muhtar)
attesting to his father’s poverty. The certificate stated that
neither S.A. nor anyone else from his household was employed. It also
indicated that he was ill, had no social security and depended on
support from his neighbours.
- By
two decisions of 19 July and 1 November 2006 respectively, the
Supreme Military Administrative Court rejected the applicant’s
legal aid request, stating that pursuant to the Code of Civil
Procedure, a legal aid request must be supported by proof that the
case is well-founded and that the plaintiff does not have the means
to pay the required court fees. It concluded that the requirements
had not been met in the applicant’s case.
- On
6 November 2006 the court informed the applicant that he was to pay a
total of TRY 2,719 (approximately EUR 1,400 at the time) in court
fees within thirty days for the proceedings to be continued.
- On
10 January 2007 the Supreme Military Administrative Court decided to
discontinue the compensation proceedings because the applicant had
not paid the necessary court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
56 of Law no. 1602 on Supreme Military Administrative Courts provides
that when a Supreme Military Administrative Court determines a legal
aid request it should apply the relevant provisions of the Code of
Civil Procedure (CCP).
- Article
465 of the CCP states that a request for legal aid may only be
granted if the claimant submits evidence in support of his or her
case.
- Article
468 of the CCP provides that in order to determine whether or not the
person applying for legal aid has sufficient means, he or she shall
be required to submit a statement of his or her means, another
certificate indicating whether or not the individual owns any
property and an attestation regarding how much, if any, tax he or she
has paid. These certificates should be obtained from the appropriate
domestic authorities.
- Article
469 of the CCP provides that decisions regarding legal aid are
binding.
- In
January 2007 the minimum wage in force was TRY 562
(approximately EUR 300 at the time) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, in substance, that he had been denied access to
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 ...”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies within the meaning of Article 35 § 1 of the Convention
in that he had not appealed against the first-instance court’s
judgment dated 10 January 2007.
- The
Court reiterates that it has already examined and dismissed the
Government’s preliminary objection in similar cases, holding
that the applicants could not be expected to lodge successful appeals
against the judgments discontinuing their cases as decisions
regarding legal aid are final under Article 469 of the CCP (see
Ciğerhun Öner v. Turkey, no. 33612/03, §
29, 20 May 2008; Serin v. Turkey, no. 18404/04, § 24, 18
November 2008; and Sabri Aslan and Others v. Turkey, no.
37952/04, § 22, 15 December 2009). It finds no particular
circumstances in the instant case requiring it to depart from its
findings in the above-mentioned cases. It therefore rejects the
Government’s preliminary objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 stated that in domestic law there were two types of court
fees. The first type was a fixed amount established by the Ministry
of Finance at the end of each year, and it was published in the
Official Gazette. The second type was calculated on the basis of the
value of the litigation and varied in each case. They further pointed
out that court fees were required in order to ensure the proper
administration of justice and prevent vexatious applications. In
their observations the Government contended that decisions regarding
legal aid were given by the judges on the basis of the case files and
that there was no obligation for them to grant it under the domestic
law. They argued that in the instant case the applicant had failed to
submit the documents attesting to his poverty. In
this connection, they stated that the applicant had been represented
by a lawyer during the domestic proceedings and had thus been able to
seek legal assistance as regards the documents that would have
supported his legal aid request. The Government concluded
therefore that the domestic court’s refusal to grant legal aid
had not impaired the essence of the applicant’s right of access
to court.
- The
Court reiterates that the Convention is intended to guarantee
practical and effective rights. This is particularly so of the right
of access to court in view of the prominent place held in a
democratic society by the right to a fair trial. It is central to the
concept of a fair trial, in civil as in criminal proceedings, that a
litigant is not denied the opportunity to present his or her case
effectively before the court and that he or she is able to enjoy
equality of arms with the opposing side (see Steel and Morris v.
the United Kingdom, no. 68416/01, § 59, ECHR
2005 II).
- The
right of access to court is not, however, absolute and may be subject
to restrictions, provided that these pursue a legitimate aim and are
proportionate. Article 6 § 1 leaves to the State a free choice
of the means to be used towards this end but, while the Contracting
States enjoy a certain margin of appreciation in that respect, the
ultimate decision as to the observance of the Convention’s
requirements rests with the Court (see Kreuz v. Poland, no.
28249/95, § 53, ECHR 2001-VI, and Mehmet and Suna Yiğit
v. Turkey, no. 52658/99, § 33, 17 July 2007). The
institution of a legal aid scheme constitutes one of those means. It
may therefore be acceptable to impose conditions on the granting of
legal aid on the basis, inter alia, of the financial situation
of the litigant or his or her prospects of success in the proceedings
(see Steel and Morris, cited above, §§ 60-62, and
Wieczorek v. Poland, no. 18176/05, § 37, 8 December
2009). The question whether the provision of legal aid is necessary
for a fair hearing must be determined on the basis of the particular
facts and circumstances of each case and will depend, inter alia,
upon the importance of what is at stake for the applicant in the
proceedings, the complexity of the relevant law and procedure and the
applicant’s capacity to represent him or herself effectively.
- In
the present case, the Court must therefore determine whether the
requirement to pay the court fees imposed on the applicant
constituted a restriction in breach of his right of access to court.
- The
Court notes that the court fees that the applicant was required to
pay were calculated on the basis of the value of the litigation and
amounted to TRY 2,719 while the monthly minimum
wage was TRY 562 at the time. Contrary
to the Government’s allegation,
the applicant submitted a
certificate issued by the office of the headman before the domestic
court (see paragraph 8 above). It is clear from that certificate that
the applicant’s father has no income and that he is in a poor
financial situation. Although the certificate was issued for the
applicant’s father, the Court notes that it also attested to
the applicant’s poverty as the latter had been under the
guardianship of his father and lodged the case through him.
Nevertheless, the applicant’s legal aid request was rejected by
the Supreme Military Administrative Court, which did not indicate a
specific reason in its decision but merely referred to the relevant
legislation.
- The
Court observes that it has already examined 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 Bakan v. Turkey, no.
50939/99, §§ 74-78, 12 June 2007; Mehmet and Suna Yiğit,
cited above, §§ 31-39; Eyüp Kaya v. Turkey,
no. 17582/04, §§ 22-26, 23 September 2008; and Kaba v.
Turkey, no. 1236/05, §§ 19-25, 1 March 2011). The Court
has also examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases. In this respect, it would once again
reiterate that pursuant to Article 469 of the CCP, decisions
regarding legal aid are binding and are delivered on the basis of the
case file, without hearing the applicants (see Bakan, cited
above, § 76). The Court further holds that the refusal of the
applicant’s legal aid request deprived him of the possibility
of submitting his case before a tribunal.
- In
view of the foregoing, the Court concludes that in the instant case
there has been a disproportionate restriction of the applicant’s
right of access to court.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained of a violation of his right to an effective
remedy in that he could not have his case heard before the domestic
courts. He relied on Article 13 of the Convention.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 6 § 1 of the
Convention (see paragraph 29 above), the Court considers that it is
not necessary to examine whether, in this case, there has been a
violation of Article 13.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 150,000 Turkish liras (TRY), approximately 70,000
euros (EUR), in respect of pecuniary damage and TRY 100,000
(approximately EUR 47,000) in respect of non-pecuniary damage.
He also requested EUR 150 for the costs and expenses incurred
before the Court.
- The
Government contested these claims, considering the requested amounts
excessive.
- As
regards pecuniary damage, the Court notes that it cannot speculate as
to what the outcome of proceedings compatible with Article 6 § 1
would have been. Accordingly, it considers that no award can be made
to the applicant under this head.
- As
for non-pecuniary damage, deciding on an equitable basis, the Court
awards the applicant EUR 3,000.
- In
respect of costs and expenses, according to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and are reasonable as to quantum.
In the present case, the applicant has not provided any proof that he
actually incurred the costs claimed. Accordingly, no award shall be
made under this head.
- The
Court further reiterates that the most appropriate form of redress
for a violation of Article 6 § 1 would be to ensure that the
applicant, as far as possible, is put in the position in which he
would have been had this provision not been disregarded (see Mehmet
and Suna Yiğit, cited above, § 47). The Court
finds that this principle applies in the present case as well.
Consequently, it considers that the most appropriate form of redress
would be to quash or otherwise set aside the Supreme Military
Administrative Court’s decision dated 10 January 2007 (see
paragraph 11 above) and restart the proceedings, in conformity with
the requirements of Article 6 § 1 of the Convention, should the
applicant so request.
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine
separately the applicant’s complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into Turkish liras at the rate applicable at the date of
settlement and free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
