European Court of Human Rights

SECOND SECTION

CASE OF GÖKTAŞ v. TURKEY

(Application no. 71447/11)

JUDGMENT

STRASBOURG

9 October 2018

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

In the case of Göktaş v. Turkey,

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

Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 18 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 71447/11) 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 three Turkish nationals, Mr Kemal Göktaş, Mrs Esma Göktaş and Mr Hasan Göktaş and ("the applicants").

2. The applicants were represented by Mr S. Akkaş, a lawyer practising in Niğde. The Turkish Government ("the Government") were represented by their Agent.

3. On 29 September 2014 the applicants' complaints concerning the absence of a remedy that would have given them an opportunity increase the amount of their compensation claim and the alleged loss of value of the compensation awarded by the court were 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 applicants are a family comprising the husband and wife (the first and second applicants) and their child (the third applicant). They were born in 1976, 1978 and 2001 respectively and live in Kayseri.

5. On 9 August 2001, the second applicant was admitted to a State Hospital in Niğde. She gave birth to the third applicant who has irreversible injuries caused by an intervention performed by that hospital's medical staff during labor.

6. In their report of 12 May 2004, the Forensic Medicine Institute concluded that the two members of the medical staff who tended to the labor were equally and solely at fault for the third applicant's injuries.

7. On 1 December 2004, the first and second applicants on their own and on behalf of the third applicant, submitted a claim to the Ministry of Health for compensation arising from the third applicant's injuries.

8. Following the tacit dismissal of the claim by the administrative authorities, the applicants brought an action for damages before the Konya Administrative Court on 2 February 2005. They claimed 30,000 Turkish liras (TRY) in respect of pecuniary damage and TRY 100,000 in respect of non-pecuniary damage.

9. In the course of the proceedings, the domestic court decided proprio motu to seek an expert report to determine the amount of pecuniary damage suffered by the applicants. In his report submitted on 14 June 2006 to the court, the expert assessed the amount of pecuniary damage suffered by the applicants to have been TRY 194,916.

10. On 27 June 2006, the applicants requested to increase the amount of their claim for pecuniary damage in the light of the expert report.

11. On 6 July 2006 the court ruled in favour of the applicants and awarded them the full amount of their initial claims in respect of pecuniary damage, namely TRY 30,000 plus interest running from the date of lodging their claims with the Ministry of Health. It further awarded them a total of TRY 50,000 in respect of non-pecuniary damage and interest running from the date of the lawsuit. The applicants' request to increase their claim for pecuniary damage were dismissed by the court which considered itself bound by the initial claim indicated by the applicants when they lodged their case.

12. The applicants' ensuing appeals were dismissed by the Supreme Administrative Court on 16 June 2009 and 28 December 2010 respectively.

13 . On 22 January 2010, the Ministry of Health paid the applicants a total of TRY 144,144. Approximately TRY 53,830 of that sum represented statutory interest accrued on the principal judgment award.

II. RELEVANT DOMESTIC LAW

14. At the material time of the events, the Turkish administrative law did not allow claimants to amend their initial claims during the course of proceedings before administrative courts (see, in particular, Okçu v. Turkey , no. 39515/03, §§ 27-32, 21 July 2009).

15 . On 30 April 2013, as a result of an amendment made to the Code of Administrative Procedure, the parties in full-remedy actions have the possibility to revise their initial claims provided that the relative costs are paid.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16. The applicants complained under Article 13 of the Convention of the absence of a remedy in the Turkish administrative law to enable claimants to increase the initial amount of their claim during the course of administrative proceedings. In that respect, they claimed that they had no available course of action to claim the remaining amount as established in the expert report of 14 June 2006.

17. The Court observes that the requirements of Article 13 of the Convention are less strict than, and are in such situations absorbed by, those of Article 6 § 1 (see, among other authorities, Novaković v. Croatia , no. 32096/12, § 15, 23 July 2015). The Court, being master of the characterisation to be given in law to the facts of the case, will therefore examine this complaint under Article 6 § 1 of the Convention, which in so far as relevant reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by [a] ... tribunal ..."

A. Admissibility

18. 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

19. The applicants maintained their arguments.

20. The Government left it to the Court's discretion to assess the merits of the applicants' complaint and submitted that the legislation in question, which had prevented claimants from modifying their initial claims before the administrative courts, had been amended on 30 April 2013 (see paragraph 15 above).

21. While the Court welcomes the amendments to the relevant domestic law, it notes that the previous legislation and practice was applicable to the applicants' case. It therefore cannot affect the applicants' situation.

22. As regards the merits, the Court notes that it is not disputed between the parties that the true extent of the applicants' pecuniary damage was only brought to light during the course of the proceedings by an expert report which was ordered proprio motu by the relevant court. It is also not disputed that the only reason why the applicants were unable to increase their initial claim in the light of the expert report in question was the statutory obstacle in the code of administrative court procedure.

23. In the case of Fatma Nur Erten and Adnan Erten (no. 14674/11, §§ 29-33, 25 November 2014) , the Court found a violation of Article 6 § 1 of the Convention in respect of a similar set of circumstances. Having noted that the only reason why claimants could not modify their claims was based on the strict application of the procedural rule, the Court took the view that it would be unreasonable to expect the applicant to have known the exact extent of his pecuniary damage at the time of lodging his case with the military administrative court or to require him to overestimate his claim deliberately and lodge a case with a higher amount by paying higher court fees which would result in a disproportionate limitation to the right of access to court (see also Tamer Tanrıkulu v. Turkey, no. 36488/08, 29 November 2016).

24. The Court finds that the same considerations are applicable to the instant case and finds no reason to hold otherwise.

There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

25. The applicants complained that their initial compensation claim had lost its value during the time that it had taken the administrative courts decide on their case because of the insufficiency of the statutory interest rate vis-à-vis the rate of inflation. They relied on Article 1 of Protocol No. 1 to the Convention, the relevant part of which reads as follows:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

26. Referring, inter alia , to the Court's judgment in Okçu v. Turkey , no. 39515/03, §§ 27-32, 21 July 2009, the Government submitted that they were aware of the Court's case-law under Article 1 of Protocol No. 1 to the Convention.

27. The Court notes that it is not disputed between the parties that the domestic courts retroactively recognised the applicants' right to a "possession" by awarding compensation in respect of their pecuniary and non-pecuniary damage on account of the hospital medical staff's medical negligence, plus statutory interest running from the date on which the debt rose, that is the date of their application to the administrative authorities in respect of the award for pecuniary damage and the date of lodging their lawsuit with the administrative court in respect of the award for non-pecuniary damage. According to the inflation calculation tool provided on the website of the Turkish Central Bank [1] that amount would have been worth approximately TRY 122,305 in January 2010. However, the applicants received a total of TRY 133,830 on 22 January 2010 (see paragraph 13 above). The legal interest applied to the award therefore sufficiently offset the negative effects of inflation, contrary to the arguments of the applicants (see, mutatis mutandis, Ciddi v. Turkey (dec.) , no. 7280/13, 13 March 2018).

28. It follows that the complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. 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."

30. The applicants claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 200,000 in respect of non-pecuniary damage. They further claimed EUR 50,000 for legal fees and costs. In this connection, they submitted a receipt in the amount of EUR 9,000 attesting payment to their lawyer and an invoice in the amount of EUR 350 for translation costs.

31. The Government submitted that the applicants' just satisfaction claims as well as their claims for legal fees and costs were excessive and unfounded.

32. 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.

33. Having regard to the possibility for the applicants to have the proceedings reopened, the Court dismisses the applicants' claim for pecuniary damage (see Fatma Nur Erten and Adnan Erten, cited above, § 37). As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants jointly EUR 6,000 under this head.

34. As regards costs and expenses the Court reiterates that according to its 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 (see, among other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 187, 29 November 2016). In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award applicants jointly the sum of EUR 1,500 under this head.

35. 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 complaint under Article 6 § 1 of the Convention admissible and remainder of the application inadmissible;

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 applicants jointly, within three months the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, 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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President

[1] . See http://www.tcmb.gov.tr/. This tool adjusts any sum of money for inflation on the basis of the Consumer Price Index and thus measures the buying power of the Turkish lira over time.