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SECOND
SECTION
CASE OF MEHMET AND SUNA YİĞİT v. TURKEY
(Application
no. 52658/99)
JUDGMENT
STRASBOURG
17 July
2007
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 Mehmet and Suna Yiğit v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52658/99) 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 two Turkish nationals, Mr Mehmet Yiğit and
Mrs Suna Yiğit (“the applicants”), on 4 August
1999.
- The
applicants were represented by Mr Tanrıkulu, a lawyer practising
in Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purpose of the proceedings before
the Court.
- On
24 November 2004 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1970 and 1969 respectively and live in the
District of Ergani, in Diyarbakır.
- On
27 June 1997 the applicants' daughter, Esra Yiğit, then aged
seven months, underwent surgery at the Dicle University Medical
Faculty Hospital for a congenital hip dislocation. During the
operation, she had a cardiac arrest and lapsed into a coma. On
13 July 1997 Esra Yiğit came out of the coma, but she
was unable to move her arms and legs. On 15 July 1997 she
was admitted to the neurosurgery department and was diagnosed as
suffering from “hypoxic brain syndrome”. On 21 July 1997
she was discharged from the hospital.
- On
13 May 1998 the applicants filed a compensation claim with the
Rectorate of the Dicle University for the pecuniary and non-pecuniary
damage caused by the alleged negligence of the medical staff who
performed the operation. No response was given to the applicants
within the sixty day period prescribed in the Code of Administrative
Procedure.
- On 11 August 1998 the applicants filed an action with
the Diyarbakır Administrative Court, requesting compensation.
They also requested legal aid for the court fees.
- On
an unspecified date Mehmet Yiğit obtained a certificate from the
office of the headman (muhtarlık) attesting to his
indigence.
- On
26 August 1998 Mehmet Yiğit further applied to the Office of the
District Governor in Ergani, requesting an official certificate as to
whether he owned property in Ergani.
- On
the same day, the Office of the District Governor, the Directorate of
Land Registration and the Ergani Municipality drafted attestations
stating that Mehmet Yiğit did not own any immovable property in
Ergani.
- On
27 August 1998 the Ergani Revenue Department informed the District
Governor's Office that it had no records indicating that Mehmet Yiğit
paid tax.
- On
an unspecified date the Diyarbakır Administrative Court
dismissed the case on procedural grounds. The domestic court stated
that the applicants could lodge a new case within one month following
the rectification of the defects in their application.
- On
19 October 1998 the applicants applied to the Diyarbakır Civil
Court of General Jurisdiction, requesting exemption from paying the
court fees. The court granted their request.
- On
23 October 1998, after rectifying the procedural shortcomings in
their first petition, the applicants lodged another case with the
Diyarbakır Administrative Court. In their petition, they
repeated their request for legal aid for the court fees.
- On
17 November 1998 the Diyarbakır Administrative Court dismissed
the applicants' request for legal aid. The
court held that, since the applicants were represented by a lawyer,
they could not be considered to be in need of legal aid. (The
applicants had had a contingency fee arrangement with their lawyer.)
In its decision, the court referred to the case-law of the Supreme
Administrative Court and the provisions of the Civil Procedure Code.
- On
1 December 1998 and 4 February 1999, the Diyarbakır
Administrative Court notified the applicants that they were required
to pay 180,000,000 Turkish liras (TRL)
in respect of the court fees.
- On
8 March 1999 the applicants lodged a petition with the administrative
court requesting the annulment of the decision dated 17 November
1998. In their petition, they stated, inter alia, that they
did not have sufficient means to pay the court fees and that the
rejection of their request for legal aid was in violation of their
right of access to a court.
- On
16 April 1999 the Diyarbakır Administrative Court discontinued
the proceedings because the applicants had not paid the necessary
legal fees.
- On
16 October 2001 the Supreme Administrative Court upheld the decision
of 16 April 1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Administrative Procedure
- Article
31 of the Code of Administrative Procedure provides that when
administrative court judges determine a legal aid request, they
should apply the relevant provisions of the Code of Civil Procedure
(Articles 465-472, below).
B. Code of Civil Procedure
- Article
465 states that a request for legal aid may only be granted if the
claimant submits evidence in support of his/her request.
- According
to Article 468, in order to determine whether or not the person
applying for legal aid has sufficient means, he/she shall be required
to submit a certificate attesting to his/her indigence; another
certificate indicating whether or not the individual owns any
property and an attestation regarding how much, if any, tax he/she
had paid. These certificates should be obtained from the appropriate
domestic authorities.
- Article
469 provides that decisions regarding legal aid are binding.
C. Relevant economic data
- In
November 1998, the minimum wage in force was 47,839,500 Turkish
liras (approximately 158 US Dollars) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they had been denied access to a court,
invoking 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 ... by
[a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- In their observations, the Government submitted two
preliminary objections. In the first place, they maintained that the
applicants have not exhausted the domestic remedies and argued that
they could have initiated criminal proceedings against the medical
staff that operated on their daughter. Secondly, the Government asked
the Court to reject the application for non-compliance with the six
months time-limit. In their view, the applicants should have lodged
their application with the Court following the decision of the
Diyarbakır Administrative Court dated 17 November 1998,
since decisions regarding legal aid are binding pursuant to Article
469 of the Code of Civil Procedure.
- As
regards exhaustion of domestic remedies, the Court observes that the
domestic law provided administrative and criminal remedies to the
applicants in respect of their allegation that their daughter had
been paralysed because of medical malpractice. The Court recalls at
this point that it is for the individual to select which legal remedy
to pursue for obtaining redress for the breaches alleged (see
Airey v. Ireland, judgment of 9 October 1979, Series A
no. 32, § 23). In the present case, the applicants'
main complaint is the suffering that they had to endure because of
their daughter's illness, which in their view was the result of a
medical malpractice. As they chose to seek reparation by initiating
compensation proceedings, the Court is of the opinion that they were
not required to bring the criminal proceedings as suggested by the
Government.
- As regards the Government's second objection, the
Court observes that the applicants have lodged their application
within six months of the decision of the Diyarbakır
Administrative Court, dated 16 April 1999, by which it was
decided to discontinue the compensation proceedings because of the
applicants' failure to pay the court fees. This judgment was
subsequently upheld by the Supreme Administrative Court on 16
October 2001. In the present case, as the main legal problem
is the applicants' right of access to a court, the Court concludes
that they have filed their application within the six months
time-limit as required by Article 35 § 1 of the Convention.
- In
view of the above, the Court rejects the Government's objections.
- The Court further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants maintained that they had been denied access to court as
the court fees were set at a level far beyond their means. They
further stated that the administrative court's decision rejecting
their legal aid request had been unfair. In this connection, they
stated that, although they had submitted the relevant documents which
attested to their indigence, the Administrative Court had refused to
grant legal aid because they were being represented by a lawyer.
- The
Government contested this claim. They stated that the decisions of
the domestic courts had been delivered in accordance with the
domestic law and did not breach the applicants' right of access to
court
- The
Court reiterates that the “right to a court” is not
absolute. It may be subject to limitations permitted by implication
because the right of access by its very nature calls for regulation
by the State. Guaranteeing to litigants an effective right of access
to courts for the determination of their “civil rights and
obligations”, 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).
- A
restriction placed on access to a court or tribunal will not be
compatible with Article 6 § 1 unless it pursues a legitimate aim
and there is a reasonable relationship of proportionality between the
means employed and the legitimate aim sought to be achieved (Tolstoy
Miloslavsky v. the United Kingdom, judgment of 13 July 1995,
Series A no. 316 B, § 59). According to the
Court's case-law, a financial limitation may be imposed in the
interests of a fair administration of justice. In the past, the Court
has held that the requirement to pay fees to civil courts in
connection with the claims which they are asked to determine cannot
be regarded as a restriction on the right of access to a court that
is incompatible per se with Article 6 § 1 of the
Convention. It reiterates, however, that the amount of the fees
assessed in the light of the particular circumstances of a given
case, including the applicant's ability to pay them, and the phase of
the proceedings at which that restriction has been imposed, are
factors which are material in assessing whether or not a person
enjoyed the right of access and had “a ... hearing by [a]
tribunal” (see Kreuz, cited above, § 60).
- In
the present case, the Court must therefore determine whether the
requirement to pay the court fees imposed on the applicants
constituted a restriction in breach of their right of access to a
court.
- The
Court notes that the applicants' daughter underwent surgery in the
Dicle University Medical Faculty and lapsed into a coma during the
operation. Subsequently, she came out of the coma but lost the
ability to move her arms and legs. Following this incident, the
applicants sought to initiate compensation proceedings against the
Dicle University. To initiate these proceedings, under domestic
legislation, they were required to pay court fees amounting to TRL
180,000,000. At this point, it should be underlined that, in December
1998, this amount was four times higher than the monthly minimum wage
in force at the time (see paragraph 23 above). It is also an
undisputed fact that, at the time of the events, the applicants had
no income. This fact was supported by certificates submitted by the
applicants to the Diyarbakır Administrative Court (see
paragraphs 7-10 above). Furthermore, in October 1998, based on these
documents, the Diyarbakır Civil Court of General Jurisdiction
decided to exempt the applicants from paying the court fees (see
paragraph 12 above). In view of the foregoing, the Court
considers that the amount of the court fees imposed by the
Administrative Court constituted an excessive burden on the
applicants.
- Furthermore,
it is observed that, when the Administrative Court refused to exempt
the applicants from paying the court fees, it referred to the
case-law of the Supreme Administrative Court, according to which no
legal aid was to be granted to claimants who were represented by a
lawyer. The Court recalls that, pursuant to Article 19 of the
Convention, its task is not to substitute itself for the competent
domestic authorities in determining the most appropriate policy for
regulating access to domestic courts. Nor can it re-assess the facts
which led that court to adopt one decision rather than another. The
Court's role is limited to a review under the Convention of the
decisions which those authorities have taken in the exercise of their
power of appreciation (see Tolstoy Miloslavsky, cited above, §
59). However, in the instant case, the Court considers that
the reason, given by the Administrative Court, when refusing to award
legal aid to the applicants, is wholly insufficient. It is true that
the applicants hired a lawyer to pursue the compensation proceedings;
however, this does not mean that they had the means to pay the court
fees. Furthermore, the applicants' lawyer had explained to the
domestic courts that he had not received any money from the
applicants to pursue their case, but they had agreed to pay him a
certain percentage of any compensation received at the end of the
proceedings.
- Consequently,
in the Court's view, the requirement that the applicants, who had no
income, had to pay court fees which amounted to four times more than
the monthly minimum wage at the time, cannot be considered
proportionate.
- The
Court concludes that in the instant case there has been a
disproportionate restriction on the applicants' right of access to a
court. There has accordingly been a violation of Article 6 § 1
in that respect.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION, AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained of the suffering which they have endured
because of their daughter's illness, as a result of medical
malpractice and the lack of compensation. In this respect, they
relied on Articles 3 and 8 of the Convention, as well as Article 1 of
Protocol No. 1.
- The
Government contested those allegations.
- The
Court notes that these complaints are linked to the one examined
above and must likewise be declared admissible.
- The
Court further notes that the main Convention question raised in the
instant application was the applicants' right of access to a court,
pursuant to Article 6 § 1 of the Convention. Having found a
violation of this provision (paragraphs 35-39 above), the Court
considers that there is no need to make a separate ruling on the
applicants' other complaints, given the fact that it cannot determine
the issues of malpractice or compensation as a first instance court
itself (see Uzun v. Turkey, no. 37410/97, § 64, 10 May
2007; Sadak and Others v. Turkey, nos. 29900/96,
29901/96, 29902/96 and 29903/96, § 73, ECHR 2001 VIII).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants claimed 1,962,681,000,00 Turkish liras (TRL)
–approximately 1,216,789.21 euros (EUR) – in respect of
pecuniary damage and EUR 60,000 in respect of non-pecuniary damage.
- The
Government, considering the requested amounts excessive, contested
these claims.
- As
regards material damage, 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 Teteriny v. Russia, no. 11931/03,
§ 56, 30 June 2005; Jeličić v. Bosnia
and Herzegovina, no. 41183/02, § 53, ECHR
2006 ...). 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 annul or otherwise put aside
the administrative court decisions of 16 April 1999 and 16 October
2001 (paragraphs 17 and 18 above) and restart the proceedings before
the Diyarbakır Administrative Court, in accordance with the
requirements of Article 6 § 1 of the Convention, should the
applicants so request (see, mutatis mutandis, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003).
- As
regards non-pecuniary damage, deciding on an equitable basis, the
Court awards the applicants EUR 10,000 under this head.
B. Costs and expenses
- The
applicants also claimed EUR 4,712 for the costs and expenses incurred
before the Court. In respect of their claims, the applicants relied
on the Diyarbakır Bar Association's list of recommended minimum
fees and submitted a document showing the number of hours – 38
– spent by the lawyer on their case.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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 applicants' other complaints under Articles 3 and 8 of
the Convention, or Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) 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;
Dismisses the
remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
