SECOND SECTION
CASE OF GÜRAKIN v. TURKEY
(Application no. 1313/08)
JUDGMENT
STRASBOURG
28 November 2017
This judgment is final but it may be subject to editorial revision.
In the case of Gürakın v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1313/08) 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 Bülent Gürakın and Mr Bartu Gürakın (“the applicants”), on 7 January 2008.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. On 31 January 2017 the complaint concerning the applicants’ right of access to a court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1961 and 1996 respectively and live in Muğla.
5. The first applicant was the husband and the second applicant was the son of Mrs Özlem Gürakın, who died on 3 September 2001.
6. On an unspecified date, the applicants brought compensation proceedings against the Dokuz Eylül University Hospital, alleging that Mrs Özlem Gürakın had been a victim of medical negligence. The applicants further requested legal aid for the court fees. In respect of their legal aid claim, they submitted documents attesting to their poor financial situation.
7. On 13 December 2006 the Izmir Administrative Court rejected the applicants’ legal aid claim, without indicating any specific reasons. They were notified that they had to pay 1,683 Turkish liras (TRY) (approximately 870 Euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings.
8. As the applicants failed to pay the court fees within the time-limit, the İzmir Administrative Court sent a further warning letter to the applicants and ordered them to pay the court fees.
9. On 6 April 2007 the applicants made a second request for legal aid and asked the court to reconsider its former decision.
10. On 20 April 2007 the Izmir Administrative Court once again rejected the applicants’ request and granted them one month to pay the court fees.
11. On 12 July 2007 the court decided to discontinue the proceedings, because the applicants had not paid the necessary court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. A description of the relevant domestic law and practice can be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007.
13. In December 2006, the minimum wage in force was TRY 380 (approximately EUR 185).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
14. The applicants complained under Article 6 § 1 of the Convention that they had been denied access to a court on account of the administrative court’s refusal to grant them legal aid to pay the court fees.
A. Admissibility
15. In their observations, the Government submitted that the applicants did not exhaust domestic remedies and argued that they could have appealed against the domestic court’s decision. The Court observes that the applicants requested legal aid as they did not have means to pay the court fees. When their request was rejected, they could not pay the court fees which led to the domestic court’s decision not to continue with proceedings. Since decisions regarding legal aid are final and cannot be appealed against pursuant to Article 469 of the Code of Civil Procedure the applicants cannot be expected to appeal against the domestic decision. The Court therefore rejects the Government’s objection (see Onar v. Turkey [Committee], no. 13160/07, § 19, 16 December 2014).
16. The Court notes that the application 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
17. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so for the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is crucial 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 court 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).
18. 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.
19. The Court observes that the applicants submitted documents to the domestic courts attesting to their poor financial situation. Nevertheless, the legal aid request was rejected without any specific reasons.
20. The court fees that the applicants were required to pay amounted to approximately EUR 870 while the monthly minimum wage was approximately EUR 185 at the time. 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 grounds, 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 v. Turkey, no. 52658/99, §§ 31-39, 17 July 2007; and Eyüp Kaya v. Turkey, no. 17582/04, §§ 22‑26, 23 September 2008). The Court finds no particular circumstances in the present case which would require it to depart from its findings in the aforementioned cases. In this respect, the Court observes that the refusal of the applicants’ legal aid request deprived them of the possibility of submitting their case before a tribunal.
21. In view of the foregoing, 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. Without specifying their claims, the applicants requested that their loss be compensated by the Court.
23. The Government stated that the applicants should not be granted any just satisfaction as they had not made a specific claim.
24. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicants under this head. Moreover, the Court notes that within one year following the adoption of the present judgment, the applicants can request a retrial at the domestic level pursuant to Article 53 § 3 of the Administrative Procedure Code.
25. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants a total of EUR 3,000.
26. The Court further 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,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, within three months EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy