European Court of Human Rights

 

 

SECOND SECTION

CASE OF ERSOY v. TURKEY

(Applications nos. 13761/17, 13762/17, 21711/17, 21718/17, and 21722/17)

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

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

In the case of Ersoy v. Turkey,

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

          Valeriu Griţco, President,
          Egidijus Kūris,
          Branko Lubarda, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the applications (nos. 13761/17, 13762/17, 21711/17, 21718/17 and 21722/17) 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”) on the various dates indicated in the appended table by a Turkish national, Mr Orhan Ersoy, born in 1959 and living in Löhne (“the applicant”) who was represented by Mr M. Yıldırım, a lawyer practising in Ankara;

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey;

the decision to reject the Government’s objection to examination of the applications by a Committee;

the parties’ observations;

Having deliberated in private on 23 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  The present five applications concern the applicant’s inability to initiate compensation proceedings before administrative courts as he could not afford to pay the required court fees and was not granted an exemption by domestic authorities in different sets of proceedings, details of which are set out in the appendix. The Constitutional Court exempted the applicant from paying the Constitutional Court’s application fee on account of his poor financial situation but dismissed his individual appeals regarding his complaint about access to a court as manifestly ill-founded considering his grievances to be of a fourth-instance nature.

2.  The applicant complained before the Court that he was denied access to a court because his claims were never considered on the merits by administrative courts. The applicant further complained under Article 1 of Protocol No. 1 to the Convention that his right to the peaceful enjoyment of his possessions had been breached.

THE COURT’S ASSESSMENT

I.        Joınder of applıcations

3.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

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

4.  Relying on Article 6 § 1 of the Convention, the applicant complained that his right of access to a court had been violated because the rejection of his requests for exemption from the court fees had resulted in its claim not being examined by the administrative courts.

5.  The Government considered that the applicant’s grievances had been considered by domestic courts in different levels, including the Constitutional Court and that their conclusions in this regard could not be considered arbitrary or manifestly unreasonable. They further argued that the applicant had failed to provide the supporting documents to prove his eligibility for legal aid in the domestic proceedings.

6.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  The Court reiterates that the requirement to pay fees to civil courts at the time of bringing a claim cannot be regarded as a restriction on the right of access to court incompatible per se with Article 6 § 1 of the Convention. In that connection the Court has noted that such features as the applicant’s ability to pay the court fees and the stage of proceedings reached at the time the fees are imposed are taken into account in the assessment of whether access to the court has been impaired (see, among many others, Kreuz v. Poland, no. 28249/95, § 52 et seq., ECHR 2001‑VI). The Court further 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; Eyüp Kaya v. Turkey, no. 17582/04, §§ 22-26, 23 September 2008; Kaba v. Turkey, no. 1236/05, §§ 19‑25, 1 March 2011; and Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 52, 10 April 2012).

8.  In its examination of the present applications, the Court finds no particular circumstances which would require it to depart from its findings in the aforementioned cases. Specifically, the Court notes that in refusing to grant the applicant’s request for exemption from court fees, the administrative courts either did not indicate a specific reason but merely referred to the general provisions concerning legal aid (in application no. 13761/17) or they considered that he did not have a well-founded case (in the remaining applications). Contrary to the Government’s submissions, it does not transpire from the domestic court decisions that the applicant’s requests for exemption were refused because of a failure to prove his poor financial situation or because his cases lacked any prospect of success (contrast with Marić v. Croatia (dec.), no. 37333/17, § 58, 10 November 2020). The Court therefore finds that the very essence of the applicant’s right of access to a court has been breached because the administrative courts refused his exemption requests without relevant and specific grounds, resulting in his claims being never examined by a court on the merits.

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

III.   REMAINING COMPLAINTS

10.  The applicant also complained under Article 1 of Protocol No. 1 that his property rights had been breached as a result of the courts’ refusal to examine his claims. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

11.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaints concerning access to a court admissible and the remainder of the applications inadmissible;

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

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

           {signature_p_2}

 Hasan Bakırcı                                                                Valeriu Griţco
Deputy Registrar                                                                President

 

 

 

APPENDIX

No.	Application no. and   date    of introduction	Relevant Domestic Decisions
	13761/17 04/01/2017	Ankara Administrative Court, E.2012/1455 decisions of 28 September 2012 and 27 February 2013, upheld by the Supreme Administrative Court on 29 November 2013
	13762/17   04/01/2017	Ankara Administrative Court, E. 2012/1479 decisions of 21 September 2012 and 10 April 2013 upheld by the Supreme Administrative Court on 29 November 2013
	21711/17   05/01/2017	Ankara Administrative Court, E. 2012/405, decisions of 9 March 2012 and 11 July 2012, upheld by the Supreme Administrative Court on 14 November 2012
	21718/17   04/01/2017	Ankara Administrative Court, E. 2012/1480, decisions of 21 September 2012 and 10 April 2013, upheld by the Supreme Administrative Court on 29 November 2013
	21722/17   04/01/2017	Ankara Administrative Court, E. 2012/1438 decisions of 20 September 2012 and 21 February 2013, upheld by the Supreme Administrative Court on 29 November 2013