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SECOND
SECTION
CASE OF SERAP DEMİRCİ v. TURKEY
(Application
no. 316/07)
JUDGMENT
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 Serap Demirci v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, 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. 316/07) 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, Ms Serap Demirci (“the
applicant”), on 25 December 2006.
- The
applicant was represented by Mr İ. Akın and Ms N.Ö. Akın,
lawyers practising in Izmir. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicant alleged that her right of access to court had been breached
by a domestic court’s refusal to grant her legal aid.
- On
25 May 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in Izmir.
- On
an unspecified date in 2006 she initiated administrative proceedings
against the Ege University Hospital, claiming compensation. She
indicated, inter alia, that the doctors at the said hospital
had not acted diligently during the numerous reconstructive
operations she had undergone, which had resulted in severe
complications affecting her ears and eyes. The applicant sought a
total of 205,000 Turkish liras (TRY) (136,000 euros (EUR) at the
time) in compensation for both pecuniary and non-pecuniary damage,
submitting medical records in support of her claims. The applicant
also applied for legal aid for the required court fees, presenting a
certificate from the office of the mayor of the neighbourhood
(muhtar) in which she lived attesting to her poverty.
- On
26 January 2006 the Izmir Administrative Court rejected the
applicant’s legal aid application, after having stated that
pursuant to the Code of Civil Procedure, an application for legal aid
must be supported by proof that the case is well-founded and that the
claimant does not have the means to pay the required court fees.
- On
6 February 2006 the court informed the applicant that she was
required to pay a total of TRY 2,767 (approximately EUR 1,800 at the
time) in court fees within thirty days in order for the proceedings
to be continued.
- Subsequently,
on 22 March 2006 the applicant applied for legal aid again and
submitted additional documents proving her poor financial situation,
including certificates from the Çiğli
Directorate of Land Registration, the Revenue Department and the
Directorate of Income, which indicated respectively that she did not
own any immovable property, had no records in the tax roll and had no
income. She also argued that her case was well-founded. On 29
March 2006 her application was rejected once more.
- On
17 April 2006 the applicant was warned for the second time that she
was required pay the required fees within thirty days in order for
the proceedings to be continued.
- On
14 June 2006 the Izmir Administrative Court decided to discontinue
the compensation proceedings because the applicant had not paid the
necessary court fees. That decision was served on the applicant on 29
June 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
31 of the Administrative Procedure Act (Law no. 2577) indicates that
the relevant articles of the Code of Civil Procedure (“the
CCP”) shall be applied for matters related to legal aid before
the administrative courts.
- Article
465 of the CCP states that an application for legal aid may only be
granted if the claimant submits evidence in support of his/her case
and proves his/her state of poverty.
- 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 and a certificate regarding how much, if any, tax he/she has
paid. These certificates should be obtained from the appropriate
domestic authorities.
- Article
469 of the CCP provides that decisions regarding legal aid are
binding.
- In
June 2006, the minimum wage in force was TRY 531 a month (EUR 265
at the time).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, in substance, that she had been denied access
to the courts on account of the domestic court’s refusal to
grant her legal aid. The applicant cited 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 she had not appealed against the first-instance court’s
judgment dated 14 June 2006.
- The
Court reiterates that it has already examined and dismissed the
Government’s preliminary objection in similar cases, holding
that the applicants could not be expected to lodge successful appeals
against the 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). It finds no
particular circumstances in the instant case requiring it to depart
from its findings in the aforementioned 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 complained that the Izmir Administrative Court had breached
her right of access to court by rejecting her legal aid application.
- The
Government stated that in domestic law there were two types of court
fee. 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 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 contended that decisions regarding legal aid were
given by judges on the basis of the relevant case files and that
there was no obligation for them to grant legal aid under domestic
law. They argued that in the instant case the applicant had failed to
submit documents attesting to her poverty. In this respect, they
stated that the applicant had been represented by her lawyer during
the domestic proceedings and thus could have sought legal assistance
as regards the documents that would have supported her legal aid
application. The Government therefore concluded that the domestic
court’s refusal to grant legal aid had not impaired 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 her 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 TRY 2,767, while the monthly minimum wage was TRY 531 at
the time. Although the Government argued that the applicant had
failed to submit documents attesting to her poverty, the Court
observes that she submitted several certificates proving her poor
financial situation in support of her legal aid request before the
Izmir Administrative Court. It is clear from those certificates,
which were delivered by the domestic authorities, that the applicant
has no income and is in a poor financial situation (see paragraphs 6
and 9 above). Nevertheless, her legal aid application was rejected by
the Izmir Administrative Court, which did not indicate a specific
reason in its decision but merely referred to the relevant
legislation.
- 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 ground, inter alia, that the legal aid
system in Turkey fails to offer individuals substantial guarantees to
protect them from arbitrariness (see 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).
The Court 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 recall
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 application deprived her of the possibility of submitting
her case before 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 the courts.
- 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 20,000 in respect of pecuniary damage and EUR
80,000 in respect of non-pecuniary damage. She did not make any claim
for costs and expenses.
- The
Government, considering the requested amounts excessive, contested
these claims.
- 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
for non-pecuniary damage, deciding on an equitable basis, the Court
awards the applicant EUR 3,000.
- The
Court further 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 she
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.
Consequently, it considers that the most appropriate form of redress
would be to quash or otherwise set aside the Izmir Administrative
Court’s decision dated 14 June 2006 (paragraph 11 above) and
restart the proceedings, in accordance with the requirements of
Article 6 § 1 of the Convention, should the applicant so
request.
- 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
- Declares 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
from 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,
plus any tax that may be chargeable, to be converted into Turkish
liras at the rate applicable at the date of settlement and free of
any taxes or charges 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
