SECOND SECTION
DECISION
Application no. 56064/16
Adil AKTAY against Türkiye
and 2 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 9 January 2024 as a Chamber composed of:
Arnfinn Bårdsen, President,
Jovan Ilievski,
Egidijus Kūris,
Pauliine Koskelo,
Saadet Yüksel,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the Turkish Government (“the Government”) and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
INTRODUCTION
1. The case concerns fines imposed on the applicant, a lawyer, for abuse of the right of application in relation to three individual applications which he lodged with the Constitutional Court on behalf of his clients, some of whom had passed away before those applications were brought. The applicant primarily complained, under Article 6 § 1 and Article 13 of the Convention, that there had been no avenue through which to challenge the Constitutional Court’s decisions on abuse of the right of application and the resulting fines.
THE FACTS
2. The applicant, Mr Adil Aktay, is a Turkish national who was born in 1959 and lives in Mersin. The names of his representatives are listed in the appendix.
3. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye.
4. The facts of the case may be summarised as follows.
5. The applicant is a lawyer and member of the Mersin Bar Association.
6. In 2015 and 2016 the applicant lodged three individual applications with the Constitutional Court on behalf of clients whom he had previously represented in various proceedings concerning property rights.
7. By three decisions dated 15 February, 9 March and 29 June 2016, the Constitutional Court found that some of the clients on whose behalf the applicant had lodged the individual applications had already passed away before those applications were brought. It noted in that connection that the lawyer-client relationship had ended with the death of those individuals prior to the lodging of the respective applications. Accordingly, citing its own case-law, the Constitutional Court rejected the applications for abuse of the right of individual application in so far as they concerned the deceased individuals. Considering that the applicant had lodged applications of a misleading nature, the Constitutional Court imposed on him a fine of 1,000 Turkish liras (TRY) (approximately 300 euros (EUR) at the time) for each application pursuant to section 51 of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court and section 83 of its Internal Regulations, which set a maximum fine of TRY 2,000 (approximately EUR 600 at the material time) (see paragraphs 11 and 13 below). It further ruled that copies of those three decisions should be sent to the Mersin Bar Association, considering them to be of relevance to it. The Constitutional Court also proceeded to examine the individual applications in so far as they concerned the applicant’s remaining clients. The decisions on abuse of the right of application, which were final and not amenable to appeal (see paragraph 12 below), were issued at the same time as the decisions on the admissibility of the applications.
8. The respective dates of service on the applicant of the decisions of the Constitutional Court are listed in the appendix.
9. On 19 February 2016 the Registry of the Constitutional Court transmitted a copy of that court’s decision of 15 February 2016 (see paragraph 7 above) to the Mersin Bar Association, inviting it to assess the matter from the perspective of disciplinary law. The Government submitted in that connection that the Mersin Bar Association had decided “not to investigate” the matter, finding that the applicant had not acted deliberately. The applicant did not contest those submissions.
10. The case files do not contain any information on further developments, if any, regarding the notification of the other two decisions of the Constitutional Court to the Mersin Bar Association.
RELEVANT LEGAL FRAMEWORK
11. Section 51 of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court reads as follows:
“Applicants who are found to have clearly abused the right of individual application may be subject to a disciplinary fine not exceeding two thousand Turkish liras, in addition to the costs of the proceedings.”
12. Section 60(6) of the same Law provides as follows:
“A disciplinary fine within the meaning of this Law ... [refers to] ... a fine imposed on applicants who are found to have clearly abused the right of individual application ... [This fine] shall be final upon its imposition and [shall be] enforced immediately. The fine [, however,] shall not be converted to alternative sanctions and shall not be entered into criminal records.”
13. Section 83 of the Internal Regulations of the Constitutional Court, as in force at the material time, provided as follows:
“Where it is found that an applicant has clearly abused the right of individual application through exploitative, misleading or similar conduct, the application shall be rejected and, apart from the costs of the proceedings, a disciplinary fine not exceeding two thousand Turkish liras shall be imposed on the person concerned.”
COMPLAINTS
14. Relying on Article 6 § 1 and Article 13 of the Convention, the applicant complained that there had been no avenue through which to challenge the Constitutional Court’s decisions on abuse of the right of application and the resulting fines. He further called into question the reasoning adopted by the Constitutional Court and the characterisation of the relevant circumstances as an abuse of the right of application. The applicant lastly argued that he should have received a warning and been afforded an opportunity to submit a power of attorney on behalf of the heirs of the deceased complainants, referring in particular to the practice of another judicial authority dealing with disputes concerning property rights.
THE LAW
Joinder of the applications15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Alleged violation of Article 6 of the Convention16. The applicant complained that it had been impossible for him to challenge the decisions by which the fines in question had been imposed. He also disputed the reasoning and conclusions of the Constitutional Court, arguing in particular that there had been no abuse of the right of individual application in the impugned proceedings. He lastly contended that he should have received a warning and been afforded an opportunity to submit a power of attorney on behalf of the heirs of the deceased complainants in those proceedings. The applicant relied on Article 6 § 1 and Article 13 of the Convention.
17. The Court, being master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018, and Angerjärv and Greinoman v. Estonia, nos. 16358/18 and 34964/18, §§ 59‑60, 4 October 2022), considers that the complaints fall to be examined solely under Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The parties’ submissions as to the admissibility of the applications(a) The Government
18. The Government raised several preliminary objections.
19. They first submitted that the applications were incompatible ratione materiae with the provisions of the Convention. The Government maintained in that connection that the question of whether the dispute at issue in the present case had been of a “civil” nature should be carefully assessed, since the impugned proceedings concerned individual applications lodged with the Constitutional Court. They further referred to the case of Toyaksi and Others v. Turkey ((dec.), nos. 43569/08 and 3 others, 20 October 2010), observing that the Court had declared the applications in that case inadmissible for being incompatible ratione materiae with the Convention owing to the procedural nature of the fines imposed on the applicants. The Government concluded that the dispute at issue in the present case had not been of a “civil” nature.
20. The Government further argued that the impugned proceedings before the Constitutional Court were considered “exceptional” and could not be regarded as contentious proceedings. They also submitted that the matter in question had not involved a “serious” or “genuine” dispute. The Government further maintained that the decisions of the Constitutional Court, which had been rendered in accordance with the domestic law, had not been tainted by arbitrariness or any manifest error of assessment. They added that the Constitutional Court’s practice regarding abuse of the right of individual application was consistent with the case-law and practice of the Strasbourg Court, the only difference being the imposition of a disciplinary fine by the Constitutional Court in such circumstances.
21. The Government further submitted that the Court had previously found the criminal head of Article 6 of the Convention to be similarly inapplicable in cases involving disciplinary fines imposed in circumstances similar to the present case.
22. The Government also argued that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. They lastly invited the Court to declare the applications inadmissible as being manifestly ill‑founded.
(b) The applicant
23. The applicant disagreed with the Government’s objections.
24. The applicant maintained that Article 6 § 1 was applicable in the present case. He argued that the imposition of the disputed fines had related to his right to practise as a lawyer, which was a “civil right” within the meaning of Article 6 § 1 of the Convention. He further asserted that the outcome of the impugned proceedings had been directly decisive for the rights and obligations related to his profession, as the Constitutional Court had notified the Mersin Bar Association about the fines and had requested the imposition of additional disciplinary sanctions on him. The applicant also submitted that the notification of the Constitutional Court’s decisions to the Mersin Bar Association had adversely affected his professional reputation. He added that the dispute in question had involved his property rights, referring to the pecuniary nature of the fines imposed on him.
25. As regards the existence of a “right” within the meaning of Article 6 § 1 of the Convention, the applicant also referred, in a general manner, to the right of individual application, the right to a fair trial, the right of access to a court, the right to defence and the right of appeal, claiming that those rights were recognised under domestic law.
26. The applicant also submitted that the present case differed from that of Toyaksi and Others (cited above) in that the latter case had concerned fines imposed on the parties to the domestic proceedings rather than on their representatives. He further contended that the Court had not rejected those applications for being incompatible ratione materiae with the Convention in so far as the fines were concerned.
27. The applicant further submitted that the impugned proceedings had concerned his clients’ civil rights, specifically their property rights, and that the Constitutional Court had rejected their individual applications owing to the fines imposed on him.
28. The applicant maintained that the fact that the proceedings in question had been conducted before the Constitutional Court did not render Article 6 of the Convention inapplicable. He also called into question the reasoning of the Constitutional Court and argued that it had not been demonstrated that he had knowingly and clearly abused the right of individual application. He further contended that he had not been given an opportunity to defend himself before the impugned decisions had been taken.
29. The applicant lastly contested the Government’s arguments that he had not suffered a significant disadvantage and that the applications were manifestly ill‑founded.
The Court’s assessment30. The Court will first examine whether Article 6 of the Convention can be considered applicable to the facts of the present case under its civil or criminal heads.
(a) Applicability of the civil limb of Article 6
(i) General principles
31. The Court refers to the general principles concerning the applicability of the civil limb of Article 6 § 1 of the Convention as summarised in Grzęda v. Poland ([GC], no. 43572/18, §§ 257-59, 15 March 2022).
32. It reiterates, in particular, that for Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” (“contestation” in French) regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise (see Grosam v. the Czech Republic [GC], no. 19750/13, § 108, 1 June 2023, with further references).
33. Furthermore, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among others, Grzęda, cited above, § 257, and Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018, with further references). Civil rights and obligations must constitute the object – or one of the objects – of the dispute and the result of the proceedings at issue must be directly decisive for a particular right. This provision applies only to proceedings resulting in a decision with direct effects, but not indirect or unforeseen consequences, for the civil rights and obligations of the person concerned. In other words, application of this provision to proceedings presupposes that their direct effect was “to create, modify or annul legal rights or obligations of a civil character” (see Kortessi v. Greece, no. 31259/04, § 26, 13 July 2006, with further references).
34. The Court has previously accepted that disciplinary proceedings where the right to continue to practise a liberal profession is at stake can give rise to “disputes” over “civil rights” within the meaning of Article 6 § 1 of the Convention (see Grosam, §§ 109-10, and Angerjärv and Greinoman, § 98, both cited above, with further references). In that connection, it has recently held that what matters is not necessarily whether the impugned measure was applied formally within the context of disciplinary proceedings or some other type of proceedings, but rather the impact of the measure on the right to practise a profession (see Angerjärv and Greinoman, cited above, § 100).
35. The Court reiterates that rules enabling a court to react to disorderly conduct in proceedings before it are a common feature of legal systems of the Contracting States. Such rules derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings (see, mutatis mutandis, Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, §§ 81 and 89, 22 December 2020). Both the former Commission and the Court have examined the applicability of the civil limb of Article 6 in the context of fines imposed on the parties to legal proceedings for abuse of process or contempt of court, and found that such fines aim to ensure the proper administration of justice and therefore have the characteristics of procedural sanctions that do not involve the determination of civil rights or obligations (see, for example, Veriter v. France, no. 25308/94, Commission decision of 2 September 1996, Decisions and Reports 86-B, p. 101; Schreiber and Boetsch v. France (dec.), no. 58751/00, ECHR 2003‑XII; and Žugić v. Croatia, no. 3699/08, § 63, 31 May 2011). The Court reached the same conclusion in Andreiescu v. Romania ((dec.), no. 10656/05, §§ 6, 11 and 38, 9 April 2013), which concerned the imposition of a fine on a lawyer for non‑compliance with procedural obligations in the court proceedings in which she was representing her clients.
(ii) Application of those principles to the present case
36. The Court observes at the outset that in so far as the applicability of Article 6 is concerned, the present case is not comparable to Toyaksi and Others (cited above), in which the applicants had complained of a breach of their right of access to a court on account of the fines imposed on them as a result of unsuccessful requests for rectification that they had brought before the domestic courts. In that case, the Court concluded that the imposition of the disputed fines on the applicants did not constitute a violation of the right of access to a court, noting, among other things, that the applicants had had the opportunity to have their cases thoroughly examined at two levels of jurisdiction prior to their requests for rectification. The Court therefore notes that the domestic proceedings in that case had concerned the applicants’ own rights, whereas in the present case, the subject matter of the proceedings before the Constitutional Court – in which the disputed fines were imposed – primarily concerned the rights of the applicant’s clients rather than his own.
37. Similarly, in so far as the applicant referred to his clients’ rights which were the subject matter of the proceedings before the Constitutional Court (see paragraph 27 above), the Court notes that the nature of those rights are irrelevant for the assessment of the applicability of Article 6 § 1 of the Convention, as they did not concern the determination of the applicant’s own civil rights and obligations.
38. The Court must therefore examine whether the impugned decisions of the Constitutional Court involved the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention. In this context, the Court stresses at the outset that it is not its role to ascertain whether the Constitutional Court correctly interpreted and applied the relevant domestic provisions in the impugned proceedings, or whether the Constitutional Court’s practice regarding abuse of the right of individual application was consistent with that of the Court.
39. The Court observes that in support of his argument that Article 6 of the Convention should apply in the present case, the applicant referred in particular to his right to practise as a lawyer, his professional reputation and the pecuniary nature of the fines in question (see paragraph 24 above).
40. The Court notes that the right to practise as a lawyer is a “civil right” within the meaning of Article 6 § 1 of the Convention (see, among other authorities, W.R. v. Austria, no. 26602/95, § 27, 21 December 1999, and Angerjärv and Greinoman, cited above, § 97). However, in the present case, a question may arise as to whether the applicant can rely on such a right in relation to his (former) clients who had passed away prior to the lodging of the individual applications with the Constitutional Court. In any event, leaving aside that question, the Court must examine the impact of the disputed measure on the applicant’s right to practise as a lawyer in order to determine whether the impugned proceedings involved the determination of that right (see paragraph 34 above).
41. In that connection, the Court notes that the imposition of fines for abuse of the right of individual application was a procedural measure that the Constitutional Court could take in the course of proceedings before it (see paragraphs 7 and 11-13 above). Furthermore, there is nothing to suggest that such a measure predetermined the outcome of disciplinary proceedings that could be conducted by the Mersin Bar Association (see paragraphs 7 and 9 above; see also, mutatis mutandis, Angerjärv and Greinoman, cited above, § 99). The Court notes in addition that, contrary to the applicant’s suggestion, there is no indication that the Constitutional Court “requested” that the Mersin Bar Association impose additional disciplinary sanctions on him (see paragraphs 7 and 9 above). Indeed, it appears from the official notification dated 19 February 2016 of the Registry of the Constitutional Court that the Mersin Bar Association was merely invited to assess the matter from the perspective of disciplinary law (see paragraph 9 above).
42. The Court further notes that the impugned measure did not entail a general ban on representing clients before courts (see Angerjärv and Greinoman, cited above, § 100); indeed, it did not even prevent the applicant from representing his other clients in the same proceedings before the Constitutional Court (see paragraph 7 above). Moreover, the Court notes that, in so far as the impugned proceedings before the Constitutional Court were concerned, the only measure the applicant risked incurring was a disciplinary fine (see paragraph 11 and 13 above). Therefore, the suspension of the exercise of his profession was not among the possible measures which could have been imposed in respect of the applicant (compare and contrast Hurter v. Switzerland (dec.), no. 53146/99, 8 July 2004).
43. The Court has recently found in the case of Angerjärv and Greinoman (cited above, §§ 95-102) that the removal of two lawyers from ongoing court proceedings could not be considered to have involved the determination of their “civil right” to practise their profession, having regard in particular to the limited impact of the contested measure on that right. The Court sees no reason to hold otherwise in the present case, where the applicant was merely fined a not excessive sum, and was not removed from the proceedings in question (see paragraph 7 above). Accordingly, having regard also to the considerations expressed in paragraphs 41 and 42 above, the Court finds that the imposition of the fines in question could not be considered to amount to the determination of the applicant’s civil right to practise as a lawyer.
44. As regards the applicant’s argument that the findings of the Constitutional Court and the notification of its decisions to the Mersin Bar Association had affected his professional reputation, the Court reiterates that in order for Article 6 § 1 of the Convention to come into play, the outcome of the proceedings must be directly decisive for the civil right in question (see paragraph 33 above). In the present case, the proceedings before the Constitutional Court did not directly concern the applicant’s professional reputation but rather related to the question whether there had been an abuse of the right of application. Therefore, the question of good reputation was only remotely related to the impugned proceedings as one of the possible consequences of a finding that there had been an abuse of the right of application (see, mutatis mutandis, Marušić v. Croatia (dec.), no. 79821/12, §§ 76-77, 23 May 2017). The Court also reiterates that there is nothing to indicate that the outcome of potential disciplinary proceedings was predetermined by the Constitutional Court. In those circumstances, it cannot be said that the proceedings in question affected the applicant’s professional reputation sufficiently seriously for Article 6 § 1 to apply (ibid.).
45. As to the pecuniary nature of the fines in question, the Court reiterates that merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6 § 1 under its “civil” head (see Ferrazzini v. Italy [GC], no. 44759/98, § 25, ECHR 2001‑VII, and Albert v. Romania, no. 31911/03, § 28, 16 February 2010). The Court also attaches particular importance to the procedural nature of the disputed fines (see paragraphs 35 and 41 above; see also, mutatis mutandis, Angerjärv and Greinoman, cited above, §§ 90 and 101). In this regard, the Court reiterates that it has previously found that such fines aim to ensure the proper administration of justice and therefore have the characteristics of procedural sanctions that do not involve the determination of civil rights or obligations (see paragraph 35 above). In these circumstances, the Court considers that the inevitable pecuniary repercussions of the disputed fines, the amounts of which were not excessive, are not in themselves sufficient to bring the civil limb of Article 6 § 1 of the Convention into play.
46. Lastly, in so far as the applicant referred to other rights (see paragraph 25 above), there is nothing to suggest that the impugned fines involved the “determination” of those rights in respect of him.
47. In the light of the above, the Court finds that the civil limb of Article 6 of the Convention is not applicable to the circumstances of the present case.
(b) Applicability of the criminal limb of Article 6
48. The general principles concerning the applicability of the criminal limb of Article 6 of the Convention to contempt‑of‑court proceedings or proceedings concerning the misconduct of legal professionals have been summarised in Gestur Jónsson and Ragnar Halldór Hall (cited above, §§ 75‑83).
49. In the present case, the Court notes that the conduct for which the fines in question were imposed did not constitute a criminal offence under domestic law (see paragraphs 11-13 above). Furthermore, the offence in question was of a disciplinary nature falling within the “indispensable power of a court to ensure the proper and orderly functioning of its own proceedings” (see Gestur Jónsson and Ragnar Halldór Hall, cited above, § 81, and the references therein) and could not give rise to a sanction of imprisonment (see paragraphs 11-13 above). Furthermore, there was no possibility that the fines in question could be converted into deprivation of liberty (see paragraph 12 above; see also Gestur Jónsson and Ragnar Halldór Hall, cited above, § 95, with further references). The Court also finds that neither the amount of the fines imposed on the applicant nor the maximum fine he risked incurring suffice for the impugned sanction to be regarded as “criminal” in the autonomous sense of Article 6 of the Convention (see, mutatis mutandis, ibid., § 96, and Grosam, cited above, § 120, with further references).
50. Accordingly, the Court finds that the proceedings in question did not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention and that this provision did not apply to those proceedings under its criminal limb either.
(c) Conclusion
51. It follows that the applications are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must as such be rejected in accordance with Article 35 § 4 of the Convention.
52. That conclusion dispenses the Court from having to address any of the other grounds of inadmissibility put forth by the Government.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 1 February 2024.
Hasan Bakırcı Arnfinn Bårdsen
Registrar President
Appendix
List of cases:
No.
Application no.
Lodged on
Representatives
Date of service of the Constitutional Court’s decision
1.
56064/16
25/08/2016
Utku Çağrı AKTAY
Şefik KARAKIŞ
26/02/2016
2.
58000/16
10/09/2016
Utku Çağrı AKTAY
Şefik KARAKIŞ
14/03/2016
3.
15087/17
09/01/2017
Utku Çağrı AKTAY
Şefik KARAKIŞ
11/07/2016