SECOND SECTION

CASE OF COŞKUN v. TURKEY

(Application no. 22443/05)

JUDGMENT

STRASBOURG

27 January 2015

This judgment is final but it may be subject to editorial revision. 
In the case of Gülay Coşkun v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Nebojša Vučinić, President,
	Paul Lemmens,
	Egidijus Kūris, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated in private on 16 December 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22443/05) 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, Ms Gülay Coşkun (“the applicant”), on 28 May 2005.
2.  The applicant was represented by Mr A. Gültekin, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 25 May 2010 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lives in İzmir.
5.  On 15 May 2001, the applicant had cardiac surgery in Ege University Hospital in İzmir and her heart valve was replaced by a mechanical valve. The applicant was insured by the Retired Civil Servants’ Fund (emekli sandığı) and all her medical expenses were covered by the insurance.
6.  Following the operation, the applicant’s heart condition did not improve and she suffered physiologically as a result of a disturbing noise coming from the mechanical heart valve.
7.  In 2003, the applicant found out from the press that the type of mechanical valve used in her operation was banned by the Ministry of Health because of serious production defects.
8.  Being convinced that she was subjected to negligence, the applicant decided to bring compensation proceedings against the Ministry of Health, the Retired Civil Servant’s Fund, the Ege University Hospital and the doctors who operated on her.
9.  In October 2003, the applicant applied to the İzmir Administrative Court and requested 250,000,000,000 Turkish liras (TRL) (approximately 153,000 euros (EUR)). The applicant requested legal aid for the court fees and submitted a certificate attesting to her indigence. On 5 November 2004 the İzmir Administrative Court, without giving any specific reason, decided that the applicant did not fulfil the prerequisite to be eligible for legal aid which was required under Article 465 of the Code of Civil Procedure (CCP). On 21 December 2004 and 17 February 2005 respectively, the applicant was notified that she had to pay TRL 3,364,900,00 (approximately EUR 20,600) in court fees within one month in order for the proceedings to continue, and that failure to do so would result in the discontinuation of the proceedings.
10.  The applicant failed to pay the court fees. On 20 April 2005 the İzmir Administrative Court decided to discontinue the proceedings.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
11.  At the material time, Article 465 of the CCP, Law no. 1086, stated that a request for legal aid may only be granted if the claimant submits evidence in support of his/her case.
12.  According to Article 468 of the CCP, in order to determine whether or not the person applying for legal aid has sufficient means, he/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 a certificate showing how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities.
13.  Article 469 of the CCP provides that decisions regarding legal aid are final and cannot be appealed against.
14.  In April 2004, the minimum wage in force was TRL 423,000,000 (approximately EUR 260) a month.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained that the refusal to grant her legal aid in connection with her compensation case had infringed her right to a fair hearing guaranteed by Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
16.  The Government contested that argument.
A.  Admissibility
17.  In their observations, the Government submitted that the applicant did not exhaust the domestic remedies and argued that she could have appealed against the domestic court’s decision. The Court observes that the applicant requested the legal aid as she did not have means to pay the court fees. When her request was rejected, she could not pay the court fees and that caused the domestic court to decide not to continue the proceedings. Since decisions regarding legal aid are final and cannot be appealed against pursuant to Article 469 of the Code of Civil Procedure the applicant cannot be expected to appeal against the domestic decision. The Court therefore rejects the Government’s objection.
18.  The Court notes that the application 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
19.  The applicant argued that by refusing her legal aid request the administrative court had breached her right of access to a court. In her view, according to the certificate of indigence concerning her economic situation, her request was irrefutable.
20.  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 published in the Official Gazette. The second type was calculated on the basis of the value of the litigation and varied in each case. The Government 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 submitted that the refusal of the legal aid request was not because of the financial situation of the applicant. In this respect, the Government stated that when lodging her compensation case with the domestic court the applicant had failed to submit relevant documents concerning her indigence.
21.  The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). However, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Stanev v. Bulgaria [GC], no. 36760/06, §§ 229-230, ECHR 2012).
22.  Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (Stanev, cited above, § 231).
23.  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 her right of access to a court.
24.  The Court observes that the applicant submitted a certificate delivered by the domestic authorities that attested to her indigence.
25.  The court fees that the applicant was required to pay amounted to approximately EUR 20,600 while the monthly minimum wage was approximately EUR 260 at the time. 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 grounds, inter alia, that the legal aid system in Turkey fails to offer individuals substantial guarantees to protect them from arbitrariness (see, in particular, Kaba v. Turkey, no. 1236/05, § 24; 1 March 2011; Bakan v. Turkey, no. 50939/99, §§ 74-78, 12 June 2007; Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 31-39, 17 July 2007; and Eyüp Kaya v. Turkey, no. 17582/04, §§ 22-26, 23 September 2008). It 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, the Court would once again recall that pursuant to Article 469 of the CCP, decisions regarding legal aid are [...] delivered on the basis of the case file, without hearing the applicant, and are final. (Bakan, cited above, § 76).
26.  In view of the foregoing, the Court concludes that in the instant case 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 in that respect.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  The applicant further complained of violations of Articles 1 and 14 of the Convention. In this connection, she alleged that her fair trial rights were not secured and she was subjected to discrimination on the basis of her financial situation.
28.  The Court has examined the case file and finds no appearance of a violation under Articles 1 and 14 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. Nevertheless, the Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicants, as far as possible, are put in the position in which they 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 İzmir Administrative Court’s decision dated 20 April 2005 (paragraph 10 above) and continue the proceedings, in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;
Done in English, and notified in writing on 27 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Abel Campos	Nebojša Vučinić
	Deputy Registrar	President