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SECOND
SECTION
CASE OF
HÜSEYİN ÖZEL v. TURKEY
(Application
no. 2917/05)
STRASBOURG
10
January 2012
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 Hüseyin Özel v. Turkey,
The
European Court of Human Rights (Chamber), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Danutė
Jočienė,
Dragoljub
Popović,
Isabelle
Berro-Lefèvre,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2917/05) 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, Mr Hüseyin Özel
(“the applicant”), on 16 December 2004.
- The
applicant was represented by Mr H. Aygün, a lawyer practising in
Tunceli. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged under Article 6 of the Convention that the court
fees he had been required to pay were so excessive as to deny him his
right of access to court.
- On
19 January 2010 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
applicant’s right of access to court to the Government. It
was decided to rule on the admissibility and merits of that complaint
at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Tunceli.
- On
8 April 2003 the applicant made a request to the Governorship of
Tunceli to be informed about the living conditions in his village,
which he claimed to have had to leave in 1994 for security reasons.
On 14 April 2003 the Governorship of Tunceli informed the applicant
that he could move back to his village and that he would receive
services and financial support from the Governorship for doing so.
Subsequently, on 18 June 2003 the Ministry of Public Works and
Settlement (Bayındırlık ve İskan Bakanlığı)
conducted an on-site inspection and issued a report which indicated
that the houses in the village were old and ruined.
- On
4 December 2003 the applicant, together with several other residents
of the village, applied to the Ministry of the Interior through the
Governorship of Tunceli requesting compensation for the damage to his
property that had occurred over the ten years he had had to live away
from his village.
- On
7 January 2004 the Governorship of Tunceli submitted a report to the
Ministry of the Interior. The report stated that the residents had
left the village of their own accord in 1994 and that the
Administration had no liability regarding the damage to the property.
It indicated that, in any event, there was no record or title deed to
prove the applicant’s ownership of property in the village. The
report was later approved by the Ministry of the Interior.
- On
3 March 2004 the applicant instituted compensation proceedings in the
Malatya Administrative Court against the Ministry of the Interior. He
requested a total of 150,000,000,000 Turkish liras (TRL)
(approximately 90,000 euros (EUR) at the time), claiming that he
had not been allowed to go back to his village for nine years and
that the administration was indirectly liable for the damage that had
occurred over that time. The applicant also requested legal aid to
cover the court fees.
- On
16 March 2004 the Malatya Administrative Court rejected the
applicant’s request for legal aid, merely stating that he did
not fulfil the conditions laid down in Article 465 of the Code of
Civil Procedure.
- On
22 March 2004 the court notified the applicant that he was required
to pay a court fee of TRL 2,035,100,000 (approximately EUR 1,200)
and a postal fee of TRL 40,000,000 (approximately EUR 25) within
thirty days. The applicant objected to the court’s decision
regarding his request for legal aid. On 31 May 2004 the
Administrative Court rejected his objection. The court stated that
its decisions regarding legal aid were final.
- On
2 June 2004 the court once more informed the applicant that he had to
pay the required fees within thirty days in order to continue the
proceedings and that the proceedings would be discontinued if he
failed to do so.
- On
15 July 2004 the Administrative Court discontinued the proceedings as
the applicant had not paid the court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
465 of the Code on Civil Procedure (CCP) states that a request for
legal aid may only be granted if the claimant submits evidence in
support of his/her case and proves his/her indigence.
- 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, plus a certificate stating how much, if any, tax he/she had
paid. These certificates must be obtained from the appropriate
domestic authorities.
- Article
469 of the CCP provides that decisions regarding legal aid are
binding.
- In
March 2004, the minimum wage was TRL 423,000,000 (approximately
EUR 260) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, in substance, that he had been denied access to
a court on account of the domestic court’s refusal to grant him
legal aid. The applicant invoked Article 6 § 1 of the
Convention, which, in so far as relevant, provides:
“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
- The
Government argued that the applicant had failed to exhaust domestic
remedies within the meaning of Article 35 § 1 of the Convention
in that he had not appealed against the first-instance court’s
judgment dated 15 July 2004.
- The
applicant disputed the Government’s arguments.
- The
Court reiterates that it has examined and dismissed this preliminary
objection by the Government in similar cases, holding that the
applicants could not be expected to lodge successful appeals against
judgments discontinuing their cases, as decisions regarding legal aid
are final under Article 469 of the CCP (see Ciğerhun Öner
v. Turkey, no. 33612/03, § 29, 20 May 2008;
Serin v. Turkey, no. 18404/04, § 24, 18 November
2008; and Sabri Aslan and Others v. Turkey, no. 37952/04,
§ 22, 15 December 2009). The Court finds no particular
circumstances in the instant case requiring it to depart from its
findings in the above-mentioned cases. It therefore rejects the
Government’s preliminary objection.
- 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
- The
applicant argued that by refusing his legal aid request the Malatya
Administrative Court had breached his right of access to court. In
that connection, he maintained that the required court fees were
excessive. He further claimed that he had been denied legal aid
although he had submitted evidence attesting to his poor financial
situation and establishing that he had a well-founded case.
- 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 it varied in each case. They 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 did not dispute that in the
present case the applicant had submitted a statement of means, nor
did they argue that the applicant’s case had lacked grounds.
They maintained that the decision regarding legal aid had been made
by the judges on the basis of the case file and that there had been
no obligation for them to grant it under the domestic law. They
further argued that in the instant case the applicant had been
represented by his lawyer during the domestic proceedings and thus
could have sought legal assistance as regards the documents that
would have supported his legal aid request. The Government concluded
therefore that the domestic court’s refusal to grant legal aid
did not impair the essence of the applicant’s right of access
to court.
- The
Court reiterates that the Convention is intended to guarantee
practical and effective rights. This is particularly so in the case
of the right of access to court in view of the prominent place held
in a democratic society by the right to a fair trial. It is central
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 courts 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).
- The
right of access to court is not, however, absolute and may be subject
to restrictions, provided that these pursue a legitimate aim and are
proportionate. 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, and Mehmet and Suna Yiğit
v. Turkey, no. 52658/99, § 33, 17 July 2007). The
institution of a legal aid scheme constitutes one of those means. It
may therefore be acceptable to impose conditions on the grant of
legal aid on the basis, inter alia, of the financial situation
of the litigant or his or her prospects of success in the proceedings
(see Steel and Morris, cited above, §§ 60-62, and
Wieczorek v. Poland, no. 18176/05, § 37, 8 December
2009). The question whether the provision of legal aid is necessary
for a fair hearing must be determined on the basis of the particular
facts and circumstances of each case and will depend, inter alia,
upon the importance of what is at stake for the applicant in the
proceedings, the complexity of the relevant law and procedure and the
applicant’s capacity to represent him or herself effectively.
- 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 court.
- The
Court notes that the court fees that the applicant was required to
pay were calculated on the basis of the value of the litigation and
amounted to TRL 2,035,100,000, while the monthly minimum wage was
TRL 423,000,000 at the time. It also observes that in rejecting
the applicant’s legal aid request, the Malatya Administrative
Court did not indicate a specific reason but
merely referred to the relevant legislation. Accordingly, it was not
established whether the legal aid request was rejected as a result of
the applicant’s failure to prove his poor financial situation
or as his case lacked basis. The Court notes that it has
already examined similar grievances in the past and has found a
violation of Article 6 § 1 of the Convention on the ground,
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, cited above,
§§ 31 39; Eyüp Kaya v. Turkey,
no. 17582/04, §§ 22-26, 23 September 2008; and Kaba v.
Turkey, no. 1236/05, §§ 19-25, 1 March 2011). 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, it would once again note that
pursuant to Article 469 of the CCP decisions regarding legal aid are
binding and are delivered on the basis of the case file, without
hearing the applicants (Bakan, cited above, § 76). The
Court further observes that the refusal of the applicant’s
legal aid request deprived him of the possibility of submitting his
case to a tribunal.
- 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 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed EUR 15,000 in respect of pecuniary damage and EUR
10,000 in respect of non-pecuniary damage. He also requested
EUR 4,250 for costs and expenses incurred before the Court,
without submitting any documents.
- The
Government contested these claims, considering the amounts requested
excessive.
- 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. Accordingly, it considers that no award can be made
to the applicant under this head.
- As
regards non-pecuniary damage, deciding on an equitable basis, the
Court awards the applicant a total of EUR 3,000 under this head.
- In
respect of costs and expenses, according to the Court’s
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.
In the present case, the applicant has not substantiated his
contention that he actually incurred the costs claimed. Accordingly,
no award will be made under this head.
- 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into Turkish liras at the rate applicable on the date of
settlement, plus any tax that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
