European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF DİK v. TURKEY

 

(Application no. 24536/09)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

 

12 December 2017

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Dik v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Ledi Bianku, President,
          Valeriu Griţco,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 21 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 24536/09) 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 İsmail Dik (“the applicant”), on 28 April 2009.

2.  The applicant was represented by Mr A. Bayar, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 31 January 2017 the complaint concerning the applicant’s right of access to a court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1980 and lives in Van.

5.  Relying on Law no. 5233 on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism, the applicant applied to the compensation commission and requested to be awarded compensation due to forced evacuation from his village. His request was rejected. Subsequently, he initiated proceedings before the Van administrative court to have the said decision annulled. Relying on documents attesting to his poor financial status, the applicant requested legal aid to pay the court fees. On 7 July 2006 the administrative court rejected the applicant’s legal aid request. He was notified that he had to pay 604 Turkish Liras (TRY) (approximately 330 euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings. As the applicant failed to pay the court fees within the time-limit, on 2 August 2006 and 27 October 2006 respectively, the Van Administrative Court sent further warning letters and ordered the applicant to pay the court fees.

6.  On 29 December 2006 the court decided to discontinue the proceedings since the necessary court fees were not deposited with the registry of the court. The Supreme Administrative Court upheld the judgment on 17 December 2008. Subsequently, the administrative court decided to discontinue the proceedings.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

7.  A description of the relevant domestic law and practice can be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007.

8.  In July 2006, the minimum wage in force was TRY 380 (approximately EUR 185).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

9.  The applicant complained under Article 6 § 1 of the Convention that he had been denied access to a court on account of the administrative court’s refusal to grant him legal aid to pay the court fees.

10.  The Government did not submit observations on the merits of the case.

11.  The Court notes that the application 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.

12.  As to the merits of the case, the Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so for the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is crucial 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).

13.  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 a court.

14.  The Court observes that the applicant submitted documents to the domestic courts attesting to his poor financial situation. Nevertheless, the legal aid request was rejected without any specific reasons.

15.  The court fees that the applicant was required to pay amounted to approximately EUR 330 while the monthly minimum wage was approximately EUR 185 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, 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 observes that the refusal of the applicant’s legal aid request deprived him of the possibility of submitting his case before a tribunal.

27.  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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

A.  Damage

16.  The applicant claimed EUR 50,000 in respect of pecuniary and EUR 15,000 in respect of non-pecuniary damage.

17.  The Government contested the claims.

18.  As regards pecuniary damage, the Court 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.

19.  As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 3,000.

B.  Costs and expenses

20.  Referring to a contingency fee agreement, the applicant’s representative stated that the applicant would have to pay him 25 % of the total amount of compensation awarded by the Court. A copy of this agreement was not submitted to the Court. Without submitting any invoice, the applicant’s representative further claimed EUR 400 for postal and translation expenses. Finally, the representative claimed a further EUR 550 for 20 hours’ legal work.

21.  The Government contested the claim.

22.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.

C.  Default interest

23.  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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                       Ledi Bianku
Deputy Registrar                                                                       President