BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF
İLBEYİ KEMALOĞLU AND MERİYE KEMALOĞLU v.
TURKEY
(Application
no. 19986/06)
JUDGMENT
STRASBOURG
10 April
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 Ilbeyi Kemaloğlu and Meriye Kemaloğlu v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Isabelle Berro-Lefèvre,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19986/06)
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 İlbeyi Kemaloğlu
and Mrs Meriye Kemaloğlu (“the applicants”), on
19 April 2006.
2. The
applicants were represented by Mr E. Cinmen, a lawyer practising in
İstanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
1 September 2009 the application
was communicated to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). On 29 March 2011 the applicants’
additional complaint under Article 2 of the Convention was also
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1965 and 1974 respectively, and
live in İstanbul. They are the
parents of Atalay Kemaloğlu, who died in 2004, when he was seven
years old.
- On
22 January 2004 Istanbul was hit by a heavy snow storm. Consequently,
upon the instructions of the Ministry of Education, schools in
Istanbul broke up for the winter beak a day earlier than scheduled.
On that day, Atalay had gone to his primary school on the
municipality’s shuttle, which travelled between his home and
the school. After the school bulletins had been distributed, classes
were dismissed at the beginning of the afternoon, before the normal
school day was over.
- According
to the information in the case file, Atalay had not enrolled for the
paid school bus, but was using the shuttle that was operated for free
by the municipality. As the early dismissal of the classes had not
been notified to the municipality, the shuttle did not come when the
school was closed. Atalay therefore tried to walk back home, which
was 4 km away from his school. Late in the afternoon, when he did not
return from school, the applicants called the police. However, it was
not possible to find Atalay. His body was found the following day,
frozen near a river bed.
- Following
the incident, the Primary School Inspectors’ Presidency of the
Istanbul Education Directorate (İstanbul Valiliği İl
Milli Eğitim Müdürlüğü İlköğretim
Müfettişleri Başkanlığı) initiated
an investigation, during which the inspectors took the statement of
the driver of the municipality’s shuttle. He explained that on
the day of the incident he had taken seven students from their homes
and had left them in front of the school. Every day, he took them
back around 5.30 p.m. On that day, no one informed him that the
school would be closed at 2.00 p.m. Therefore, when he went to the
school, everyone had already left. The inspectors prepared a report
on 27 January 2004 and found that the deputy headmaster of the school
had been at fault for not informing the municipality about the early
closure of the schools. On 18 February 2004 the Presidency concluded
that the deputy headmaster of the school had been at fault for
neglecting to inform the municipality’s shuttle service of the
early dismissal of the classes. It accordingly decided to issue a
warning to the deputy headmaster as a disciplinary sanction.
- On 6 August 2004 the applicants filed two separate
actions with the Istanbul Administrative Court against the Ministry
of Education, Yenidoğan Municipality and Istanbul Municipality.
Alleging that their son had lost his life due to the negligence of
the domestic authorities, the first applicant requested
375,000,000,000 Turkish liras (TRL) (approximately 207,000 euros
(EUR) at the time) and the second applicant TRL 324,000,000
(approximately EUR 188,000 at the time) covering both pecuniary and
non-pecuniary compensation. They also requested legal aid for the
court fees.
- On
30 September 2004 the Istanbul Administrative Court requested the
applicants to complete the case file by submitting relevant documents
in support of their legal aid claim within one month.
- In
support of their legal aid claim, both applicants submitted to the
Istanbul Administrative Court certificates from the office of the
headman (muhtarlık) attesting to their indigence,
certificates from the District Governor confirming that they did not
own any immovable property and certificates indicating that they were
in debt to the Tax Office.
- On
8 June 2005 the Istanbul Administrative Court dismissed the
applicants’ request for legal aid without giving any specific
reasons.
- Subsequently,
on 8 August 2005 the applicants were notified that they were required
to pay TRL 5,072,600,000 (approximately EUR 3,000 at the time) and
TRL 4,384,100,000 (approximately EUR 2,600 at the time) respectively
for the court fees within one month in order for the proceedings to
be continued.
- On
29 December 2005 the Istanbul Administrative Court decided to
discontinue the proceedings as the applicants had failed to pay the
relevant court fees.
- In
the meantime, on 27 February 2004 the applicants filed a criminal
complaint with the Ümraniye Public Prosecutor against the school
headmaster, the deputy headmaster and Atalay Kemaloğlu’s
class teacher. On an unspecified date, pursuant to Law no. 4483 (Law
on the Prosecution of Civil Servants and Public Officials) the
Ümraniye Public Prosecutor referred the file to the Ümraniye
District Governor’s office and requested authorisation to
prosecute the accused persons.
- On
16 April 2004 the Ümraniye District Governor refused to
authorise the public prosecutor to initiate criminal proceedings
against the school headmaster, the deputy headmaster and the class
teacher, on the basis of a report prepared by the headmaster of the
Ümraniye High School, who stated that no fault could be
attributed to the accused persons.
- On
13 May 2004 the applicants lodged an objection against the decision
of the Ümraniye District Governor’s office.
- On
25 June 2004 the Istanbul Regional Administrative Court annulled the
decision of the Ümraniye District Governor and held that there
was sufficient evidence in the case file to initiate criminal
proceedings against the accused headmaster, deputy headmaster and
class teacher.
- Accordingly,
on 4 October 2004 the Ümraniye Public Prosecutor filed an
indictment with the Ümraniye Criminal Court against S.Ç
(the deputy headmaster of the school), S.Ö. (Atalay’s
class teacher) and Ö.Ö (the school headmaster), accusing
them of misconduct in office under Article 230 of the former
Criminal Code. The applicants joined the criminal proceedings as
civil parties and reserved their right to claim compensation.
- During
the proceedings, the court heard the defence statements of the
accused. Atalay’s class teacher, Ms S.Ö., maintained that
a day before the incident she had told her students that their
parents should be present on 22 January 2004 as school bulletins
would be distributed. The court also obtained an expert opinion from
a psychologist, who stated that a seven year old child could not be
expected to find effective solutions when faced with extraordinary
situations. In this connection, she stated that the child could not
have foreseen the dangers he would face when he tried walking home
alone in the heavy snow storm.
- On
28 June 2006 the Ümraniye Criminal Court acquitted the accused
persons of the charges against them. In its decision, the court held
that the death of Atalay had not been the result of a deliberate
action. The reasoning stated that there were 2,400 pupils in the
school, and that it could not be considered reasonable to expect the
school authorities to control where the pupils went after the classes
were dismissed. The court further held that in order to conclude that
there had been misconduct in office, the public officer had to have
wilfully neglected performing his duty. According to the court, in
the instant case the school authorities could not be reasonably
expected to foresee that Atalay would be frozen to death on his way
back home. The court also decided that it did not have jurisdiction
to examine whether or not there had been a service-related fault
(hizmet kusuru) in the circumstances of the present case.
- On
11 November 2010 the Court of Cassation quashed the judgment of the
Ümraniye Criminal Court, without examining the merits of the
case, for procedural reasons, namely due to the absence of the
signature of the court’s clerk on the minutes of a hearing
which had been held on 2 February 2005. The case file was accordingly
remitted to the Ümraniye Criminal Court.
- On
13 May 2011 the Ümraniye Criminal Court once again acquitted
S.Ç., S.Ö and Ö.Ö of the charges against them
on the basis of the same reasoning as given in its previous judgment
of 28 June 2006.
- The
appeal proceedings are still pending before the Court of Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
full description of the relevant domestic law regarding legal aid may
be found in Mehmet and Suna Yiğit v. Turkey, no.
52658/99, §§ 19-22, 17 July 2007
- In
August 2004, the minimum wage in force was TRL 444,150,000
(approximately EUR 245 at the time) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that Article 2 of the Convention had been
breached in that the State had failed in its positive obligation to
protect their son’s life and failed to carry out an effective
investigation into the circumstances of his death. Article 2 of the
Convention reads:
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
- Referring
to the criminal proceedings, which are currently pending before the
domestic courts, the Government argued that the applicants’
complaint raised under Article 2 of the Convention must be rejected
for being premature under Article 35 of the Convention.
- The
Court observes that this objection is closely linked to the
Government’s positive obligation under Article 2 to set up an
effective judicial system, inter alia to provide appropriate
redress to the victims. Accordingly, it decides to join it to the
merits.
- The
Court further 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
1. The submissions of the parties
(a) The applicants
- The
applicants maintained that the respondent State had failed to protect
the right to life of their child. In their view, by letting a seven
year- old child go alone in a heavy snow storm, the school
authorities had failed in their duties. The applicants further
complained about the alleged ineffectiveness of the domestic
remedies, as in the present case there had been no effective remedy
capable of holding accountable those responsible for the death of
their son, Atalay Kemaloğlu.
(b) The Government
- The
Government did not submit any observations regarding the merits of
the case, stating that the criminal proceedings were still pending
before the Court of Cassation.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998-III).
- Such
positive obligation has been found to arise in a range of different
contexts examined so far by the Court. Thus, for example, and as
regards policing, the Court has noted that the authorities are under
a duty to protect the life of an individual where it is known, or
ought to have been known to them in view of the circumstances, that
he or she was at real and immediate risk from the criminal acts of a
third party (see Osman v. the United Kingdom, 28 October 1998,
§ 115, Reports of Judgments and Decisions 1998 VIII).
- The
State’s positive obligation under Article 2 has also been found
to be engaged in the health care sector, be it public or private, as
regards the acts or omissions of health professionals (see Dodov
v. Bulgaria, no. 59548/00, §§ 70, 79-83 and 87,
ECHR 2008 ...; Byrzykowski v. Poland, no. 11562/05,
§§ 104 and 106, 27 June 2006; and Vo v. France [GC],
no. 53924/00, §§ 89-90, ECHR 2004 VIII, with
further references), as well as in respect of the management of
dangerous activities (see Öneryıldız v. Turkey
[GC], no. 48939/99, § 71, ECHR 2004 XII) and
ensuring safety on board a ship (see Leray and Others v. France
(dec.), no. 44617/98, 16 January 2001) or on building sites (see
Pereira Henriques and Others v. Luxembourg (dec.), no.
60255/00, 26 August 2003). In certain circumstances, positive
obligations may attach to a State to protect individuals from risk to
their lives resulting from their own action or behaviour (see Bone
v. France (dec.), no. 69869/01, 1 March 2005; Kalender v.
Turkey, no. 4314/02, §§ 42-50, 15 December 2009). In
addition, the extent of the State’s positive obligation under
Article 2 has been addressed by the Court in the context of road
safety (see, for example, Rajkowska v. Poland (dec.), no.
37393/02, 27 November 2007). The State’s duty to
safeguard the right to life was also considered to extend to the
provision of emergency services where it has been brought to the
notice of the authorities that the life or health of an individual is
at risk on account of injuries sustained as a result of an accident
(see Furdik v. Slovakia (dec.), no 42994/05, 2 December
2008).
- The
above list of sectors is not exhaustive. Indeed, in its Öneryıldız
v. Turkey judgment cited above (§ 71) the Grand Chamber
observed that the Article 2 positive obligation must be construed as
applying in the context of any activity, whether public or not, in
which the right to life may be at stake. In this connection, the
Court considers that the State’s duty to safeguard the right to
life is also applicable to school authorities, who carry an
obligation to protect the health and well-being of pupils, in
particular young children who are especially vulnerable and are under
the exclusive control of the authorities (see, mutatis mutandis,
Molie v.Romania (dec.), no. 13754/02).
- However,
the positive obligation is to be interpreted in such a way as not to
impose an excessive burden on the authorities, bearing in mind, in
particular, the unpredictability of human conduct and operational
choices which must be made in terms of priorities and resources.
Accordingly, not every risk to life can entail for the authorities a
Convention requirement to take operational measures to prevent that
risk from materialising. For a positive obligation to arise, it must
be established that the authorities knew or ought to have known at
the time, of the existence of a real and immediate risk to the life
of an identified individual and, if so, that they failed to take
measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk (see, amongst other
authorities, Keenan v. the United Kingdom, no. 27229/95,
§§ 89-92, ECHR 2001 III, and A. and Others v.
Turkey, no. 30015/96, §§ 44-45, 27 July
2004).
- The
Court recalls in this connection that the choice of means for
ensuring the positive obligations under Article 2 is in principle a
matter that falls within the Contracting State’s margin of
appreciation. There are different avenues to ensure Convention
rights, and even if the State has failed to apply one particular
measure provided by domestic law, it may still fulfil its positive
duty by other means (see, among other cases, Fadeyeva v. Russia,
no. 55723/00, § 96, ECHR 2005 IV).
- The
State’s positive obligation also requires an effective
independent judicial system to be set up so as to secure legal means
capable of establishing the facts, holding accountable those at fault
and providing appropriate redress to the victim (see Dodov,
cited above, § 83, and Byrzykowski, cited above, §§
104-118). This obligation does not necessarily require the provision
of a criminal-law remedy in every case. Where negligence has been
shown, for example, the obligation may for instance also be satisfied
if the legal system affords victims a remedy in the civil courts,
either alone or in conjunction with a remedy in the criminal courts.
However, Article 2 of the Convention will not be satisfied if the
protection afforded by domestic law exists only in theory: above all,
it must also operate effectively in practice (see Calvelli and
Ciglio v. Italy [GC], no. 32967/96, § 53, ECHR 2002 I).
- For
the Court, and having regard to its case-law, the State’s duty
to safeguard the right to life must also be considered to involve the
taking of reasonable measures to ensure the safety of individuals in
public places and, in the event of serious injury or death, having in
place an effective independent judicial system securing the
availability of legal means capable of establishing the facts,
holding accountable those at fault and providing appropriate redress
to the victim (see, Ciechońska v. Poland, no.
19776/04, § 67, 14 June 2011). The
events related to the death of the applicants’ son therefore
fall within the scope of Article 2 of the Convention.
(b) Application of the general principles
in the present case
- In
the present case, the applicants’ seven year-old son was frozen
to death in 2004 as he was trying to return home alone after the
early dismissal of the classes due to bad weather conditions. The
Court observes that the Government did not make any comments on the
merits of the complaint raised under Article 2 of the Convention by
referring to the criminal proceedings which are still pending before
the Court of Cassation. The Court notes however that following the
child’s death, disciplinary proceedings were initiated against
the deputy headmaster of the school. It further observes that at the
end of these proceedings, the Primary School Inspectors’
Presidency of the Istanbul Education Directorate which conducted the
disciplinary investigation, found it established that the deputy
headmaster of the child’s school had been at fault for
neglecting to inform the municipality’s shuttle service of the
early dismissal of the classes. A warning was accordingly issued to
the deputy headmaster as a disciplinary sanction (see paragraph 7
above).
- The
Court reiterates once again the principle cited above (paragraph 36)
and notes that not every risk to life can entail for the authorities
a Convention requirement to take operational measures to prevent that
risk from materialising. Nevertheless, in the circumstances of the
present case, where a primary school is exceptionally closed early
due to bad weather conditions, in the Court’s opinion, it
cannot be considered as unreasonable to expect the school authorities
to take basic precautions to minimise any potential risk and to
protect the pupils. Therefore, the Court considers that, as also
stated in the Presidency’s decision dated 18 February 2004, by
neglecting to inform the municipality’s shuttle service about
the early closure of the school, the domestic authorities failed to
take measures which might have avoided a risk to the right to life of
the applicants’ son.
- The
Court further recalls that an issue of State responsibility under
Article 2 of the Convention might arise in the event of the inability
of the domestic legal system to secure accountability for negligent
acts endangering or resulting in loss of human rights (see
Ciechońska, cited above, § 71). The State’s
positive obligation under Article 2 also requires the setting up of
an effective functioning legal system.
- In
the present case, the Court is therefore also called upon to examine
whether the available legal remedies, taken together, as provided in
law and applied in practice, could be said to have amounted to legal
means capable of establishing the facts, holding accountable those at
fault and providing appropriate redress to the victims.
- The
Court observes that following the death of the applicants’ son,
the administrative proceedings initiated by the applicants were
discontinued as the applicants had been refused legal aid and had
therefore been unable to pay the relevant court fees (see paragraphs
8-13 above). Consequently, the refusal of their legal aid request
deprived the applicants of the possibility of submitting their case
before a tribunal, and they were therefore denied to benefit from a
remedy which could afford them an appropriate civil redress (see
paragraphs 52 and 53 below).
- Furthermore,
the criminal proceedings initiated by the public prosecutor in 2004
against the school’s headmaster, deputy headmaster and the
child’s class teacher on account of negligence and misconduct
of office, are still pending before the Court of Cassation, although
eight years have elapsed since the incident. In this connection, the
Court is particularly struck by the long period of time which elapsed
between the acquittal judgment of the Ümraniye Criminal Court
delivered on 28 June 2006, and the decision of the Court of Cassation
dated 11 November 2010. In this connection, the Court notes that,
after almost four and a half years, the Court of Cassation quashed
the judgment of the Ümraniye Criminal Court, without examining
the merits of the case, on the basis of a procedural reason, namely
the absence of the signature of the court’s clerk at one of the
hearings that had been held before the first instance court. The case
was accordingly remitted to the Ümraniye Criminal Court, which
once again acquitted the accused of the charges against them on 13
May 2011. According to the information submitted by the Parties, the
proceedings are still pending before the Court of Cassation (see
paragraphs 18-23 above).
- Regard
being had to the circumstances of the case as a whole, the Court
finds that the serious deficiencies encountered by the applicants
during the domestic court proceedings, namely the unreasonable delay
in the proceedings - particularly the period before the Court of
Cassation between 28 June 2006 and 11 November 2010 -, and their
inability to initiate compensation proceedings before the
administrative courts due to the refusal of their legal aid claim,
led to the failure of the domestic courts to hold accountable those
responsible for the death of the applicants’ child and to
provide an appropriate redress to the applicants.
- In
the light of the above, the Court concludes that the domestic
authorities did not display due diligence in protecting the right to
life of the applicants’ seven-year-old son. Moreover, neither
the criminal proceedings which are still pending before the national
courts nor the administrative remedy afforded by the legal system,
enabled the applicants to effectively establish any liability for the
death of their son and to obtain appropriate redress.
- Accordingly,
the Court dismisses the Government’s preliminary objection
regarding the exhaustion of domestic remedies and holds that there
has been a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the refusal to grant them legal aid in
connection with their compensation case had infringed their right to
a fair hearing guaranteed by 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, arguing that before the domestic
courts the applicants had failed to submit documents attesting to
their poverty.
A. Admissibility
- 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
Court reiterates the basic principles laid down in its established
case law regarding legal aid (see Kreuz v. Poland,
no. 28249/95, § 52-57, ECHR 2001 VI, Bakan v.
Turkey, no. 50939/99, §§ 66-68, 12 June 2007 and Mehmet
and Suna Yiğit, cited above, § 33-34). In the present
case, the court fees that the applicants were required to pay were
calculated on the basis of the value of the litigation and amounted
to TRL 5,072,600,000 and TRL 4,384,100,000 respectively while
the monthly minimum wage was TRL 444,150,000 at the time. Although
the Government argued that the applicants had failed to submit
documents attesting to their poverty, the Court observes that both
applicants submitted certificates proving their poor financial
situation in support of their legal aid request before the Istanbul
Administrative Court. It is clear from that certificate
delivered by the office of the headman that the applicants had no
income and that they were in a poor financial situation (see
paragraph 10 above). Nevertheless, their legal aid request was
rejected by the 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, cited above, §§
74-78; 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.
It considers that the refusal of the applicants’ legal aid
request deprived them of the possibility of submitting their case
before a tribunal and 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 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicants claimed 435,000 Turkish liras (TRY)
(approximately EUR 182,200) and TRY 384,000 (approximately EUR
160,900) in respect of non-pecuniary damage.
- The
Government contested the claims.
- The Court considers that the applicants have
undoubtedly suffered anguish and distress on account of the failure
of the domestic authorities to provide them with an effective remedy
to establish any liability for the death of their son and to obtain
appropriate redress. Ruling on an equitable basis, the Court awards
the applicants jointly EUR 50,000 in respect of the damage
sustained by them as a result of violations of Article 2 and Article
6 § 1 of the Convention.
- Furthermore,
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 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 Istanbul Administrative
Court’s decision dated 29 December 2005 (paragraph 13 above)
and restart the proceedings, in accordance with the requirements of
Article 6 § 1 of the Convention, should the applicants so
request.
B. Costs and expenses
- Referring
to the Istanbul Bar Association’s scale of fees, the
applicants’ representative claimed TRY 11,500 (approximately
EUR 4,800) for the costs and expenses incurred before the domestic
courts and the Court. In this connection, he stated that due to the
poor financial situation of the applicants, he had not received any
legal fees from them during the whole domestic court proceedings
since 2004.
- The
Government contested the 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, the Court notes that
the claim submitted by the applicants’ representative is not
excessive bearing in mind the eight year long domestic court
proceedings as well as the proceedings before the Court in
Strasbourg. It accordingly awards the sum of EUR 4,500 to the
applicants jointly covering all costs under this head.
C. Default interest
- 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
- Joins to the merits the Government’s
preliminary objection concerning the exhaustion of domestic remedies
and dismisses it;
2. Declares the application
admissible;
- Holds that there has been a violation of Article
2 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
50,000 (fifty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
4,500 (four 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
