ÇUKUROVA ELEKTRİK ANONİM ŞİRKETİ v. TÜRKİYE

SECOND SECTION

DECISION

Application no. 12412/15
ÇUKUROVA ELEKTRİK ANONİM ŞİRKETİ
against Türkiye

The European Court of Human Rights (Second Section), sitting on 20 May 2025 as a Committee composed of:

 Péter Paczolay, President,
 Stéphane Pisani,
 Juha Lavapuro, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 12412/15) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 February 2015 by an electricity company, Çukurova Elektrik Anonim Şirketi (“the applicant company”), which is registered in Adana and was represented by Mr N.A. Djidjirian, a lawyer practising in Paris;

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the compliance of the duty on the applicant company to pay an appeal fee, from which the Treasury was exempted, with the applicant’s right of access to court and the principle of equality of arms under Article 6 § 1 of the Convention. It further pertains to an alleged breach of the applicant company’s rights under Article 1 of Protocol No. 1 to the Convention on account of the transfer of its immovable properties to the Treasury following the domestic courts’ decisions.

2.  The applicant company is a joint-stock company established in 1952. Its articles of incorporation state that its original purpose was to enter into a concession agreement with the Government following the construction of the Seyhan Dam. They also outline the activities carried out by the applicant company, including transmitting electricity generated at the Seyhan Dam to relevant areas in the Çukurova region, establishing new facilities and selling electricity to affiliated municipalities.

3.  In 1953 a concession agreement was signed between the applicant company and the Government, which was subsequently renewed in 1988. Under that agreement, the applicant company was granted authorisation for a period of seventy years to generate, transmit, distribute and trade electricity within its service area. The concession agreement was renewed once again in 1998.

4.  The concession agreement stipulated that the immovable properties acquired by the applicant company under the scope of the agreement would be registered in the name of the Treasury at the end of the agreement period.

5.  On 11 June 2003 the Ministry of Energy and Natural Resources terminated the concession agreement, stating that the applicant company had failed to fulfil its obligations under the agreement.

6.  The Supreme Administrative Court dismissed the complaint lodged by the applicant company challenging the termination of the agreement. The decision became final in 2008.

7.  On 12 May 2010 the Treasury lodged a case with the Ankara Civil Court against the applicant company requesting the transfer of two immovable properties in Ankara in accordance with the concession agreement.

8.  On 21 April 2011 the Ankara Civil Court dismissed the case, reasoning that the properties in question were located outside the service area specified in the concession agreement. As a result, they could not be subject to the clause requiring the transfer of properties acquired under the scope of the agreement to the Treasury.

9.  The Treasury subsequently appealed against that decision. For its appeal, it did not pay an appeal fee, owing to the exemption provided for in section 13 of Law no. 492 for administrative entities that are part of the general budget.

10.  On 28 December 2011 the Court of Cassation quashed the judgment of the first-instance court. It observed that the applicant company had been established to transmit electricity generated by the Seyhan Dam to consumption areas. The Court of Cassation further noted that the company’s articles of incorporation allowed it to acquire property where necessary, indicating that the properties in question were part of the company’s commercial enterprise. Consequently, it concluded that those properties fell within the scope of assets required to be transferred to the Treasury under the concession agreement.

11.  On 18 April 2012 the Court of Cassation rejected the applicant company’s request for rectification.

12.  Following the Court of Cassation’s decision to quash the initial judgment, on 13 November 2012 the Ankara Civil Court decided in favour of the Treasury, reasoning that the properties concerned fell within the scope of the properties that were to be transferred in accordance with the concession agreement.

13.  On 26 February 2013 the applicant company lodged an appeal against the judgment of the Ankara Civil Court without paying the required appeal fee of 3,715 Turkish liras ((TRY); approximately 1,500 euros (EUR) at the time). On the same date, the Ankara Civil Court issued a warning letter to the applicant company, stating that the appeal fee had to be paid within seven days. Failure to do so would result in the appeal being regarded as withdrawn, in accordance with Article 434 of the former Code of Civil Procedure.

14.  On account of the applicant company’s failure to pay the required appeal fee, despite the warning letter sent, on 6 May 2013 the Ankara Civil Court held that no appeal should be deemed to have been lodged against its judgment of 13 November 2012.

15.  The applicant company subsequently appealed against the Ankara Civil Court’s decision of 6 May 2013.

16.  On 30 October 2013 the Court of Cassation rejected that appeal. On 6 March 2014 the Court of Cassation rejected the applicant company’s request for rectification.

17.  The applicant company subsequently applied to the Constitutional Court complaining under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

18.  On 18 September 2014 the Constitutional Court dismissed the applicant company’s application. It reasoned that the complaint regarding the right to property should be rejected for non-exhaustion of domestic remedies, as the applicant company had failed to submit a valid appeal on account of its failure to pay the required appeal fee on time, despite the warning letter sent.

19.  As regards the applicant company’s complaint concerning the requirement to pay an appeal fee, the Constitutional Court held that it should be examined under the aspect of the right of access to a court. It drew attention to the fact that the applicant company was a joint-stock company. It also established that the market value of the immovable properties concerned were between TRY 250,000 and TRY 800,000 and that the appeal fee required to be paid had only been TRY 3,715. In that regard, it held that the requirement to pay an appeal fee was a procedural rule which did not impair the very essence of the right of access to a court. Additionally, it found the fee to be proportionate, representing a reasonable amount in the light of the prevailing economic conditions and the value of the claim. It thus rejected this complaint for being manifestly ill-founded.

20.  With regard to the applicant company’s complaint that the Treasury’s exemption from paying the fee had breached the principle of equality of arms, the Constitutional Court held that the exemption had not affected the principle of equality of arms and therefore that complaint should be declared manifestly ill-founded.

21.  The applicant company complained before the Court that the requirement to pay an appeal fee given the amount concerned had violated its right of access to a court and the Treasury’s exemption from such a requirement had violated the principle of equality of arms under Article 6 § 1 of the Convention. The applicant company also complained that its rights under Article 1 of Protocol No. 1 to the Convention had been violated on account of the transfer of its immovable properties to the Treasury following the domestic courts’ decisions.

THE COURT’S ASSESSMENT

22.  The Court does not need to rule on all the preliminary objections raised by the Government regarding the applicant company’s complaints under Article 6 § 1. Even if the complaints were to fall within the ambit of Article 6 § 1, the Court finds them manifestly ill‑founded for the following reasons.

23.  The applicant company complained that the requirement to pay an appeal fee to submit a valid appeal, given the amount concerned, had violated its right of access to a court.

24.  The Government contested that complaint.

25.  The general principles concerning the right of access to a court have been summarised in the Court’s case law (see Zubac v. Croatia [GC], no. 40160/12, §§ 76-78, 5 April 2018; Weissman and Others v. Romania, no. 63945/00, §§ 33-37, ECHR 2006-VII (extracts); and Kreuz v. Poland no. 28249/95, §§ 52-57 and 60, ECHR 2001‑VI). In particular, an amount of court fees payable, assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his or her right of access to a court or whether, on account of the amount of fees payable, the very essence of the right of access to a court has been impaired (see Weissman and Others, cited above, § 37; and Kreuz, cited above, § 60).

26.  Turning to the present case, the Court observes that the court fee was calculated on the basis of a set statutory percentage of the sum at stake in the proceedings.

27.  In determining whether the restriction on the applicant company’s right of access to court by the duty to pay the appeal fee, which pursued the legitimate aim of recovering the costs of court proceedings by the State, was proportionate to this aim pursued, the Court notes that the amount of the appeal fee concerned was approximately EUR 1,500 at the time, which was reasonable given the value of the subject matter of the case. Furthermore, the Court observes that the applicant company failed to submit any document indicating its insolvency at the time.

28.  The Court further notes that the provisions of the Code of Civil Procedure made it possible for the applicant company to apply for legal aid (see Türkoğlu Demir San. Ve Tic. Ltd. Şti. and Others v. Turkey (dec.) [Committee], no. 42415/09, 25 June 2013).

29.  The Court notes, however, that the applicant did not request legal aid before the domestic courts. Furthermore, the applicant company neither paid the fee within the set time-limit nor requested an extension of time.

30.  The Court also takes note of the fact that the applicant company had been warned about the consequences of such an omission and that it had been represented by a lawyer of its own choosing. Indeed, a party seeking exemption from court fees should act with requisite diligence when presenting to the courts evidence concerning its financial standing and is under an obligation to cooperate faithfully with the courts in this matter (see Elcomp sp. z o.o. v. Poland, no. 37492/05, § 41, 19 April 2011).

31.  The foregoing considerations are sufficient for the Court to conclude that the domestic courts’ decision to leave the applicant company’s appeal unexamined on account of its failure to pay the court fee was not, in the circumstances, a disproportionate restriction on its right of access to court.

32.  It follows that this complaint must be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

33.  The applicant company further complained that the Treasury’s exemption from the requirement to pay the same appeal fee that it had been required to pay to submit an appeal had violated the principle of equality of arms.

34.  The Government contested that argument.

35.  According to the well-established case-law of the Court, the principle of equality of arms is a fundamental component of the concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. It requires a fair balance between the parties: each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-a-vis his or her opponent or opponents (Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017).

36.  However, the rights deriving from this principle are not absolute and the Contracting States enjoy a certain margin of appreciation in restricting them provided that the requirements of the Convention are complied with. In this connection only measures restricting the rights of a party to the proceedings which do not affect the very essence of that party’s rights are permissible under Article 6 § l of the Convention (see Regner, cited above, §§ 147-148).

37.  In the instant case, the Court notes that the opposing party in the domestic proceedings – whose exemption from paying the appeal fee the applicant complained of – was the Treasury. The Treasury does not have a legal personality separate from that of the State. The assets belonging to the State are described as belonging to the Treasury and all the procedures concerning immovable properties belonging to the administrations within the scope of the general budget are carried out on behalf of the Treasury.

38.  The Treasury’s exemption from court fees is thus not intended to confer a privilege on the Treasury in the provision of judicial services but results from the fact that it would be redundant to collect from the Treasury the fee – which serves the aim of recovering the costs of court proceedings by the State (see paragraph 27 above) – which would ultimately be transferred back to it.

39.  The Court also reiterates that despite the procedural rule from which the Treasury was exempt the applicant company was afforded a reasonable opportunity to present its case before the courts as required by Article 6 § 1 of the Convention (see also paragraph 31 above).

40.  The foregoing considerations are sufficient for the Court to conclude that the Treasury’s exemption from paying the appeal fee did not affect the very essence of the applicant company’s right to equality of arms.

41.  It follows that this complaint must equally be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

42.  The applicant company also complained that the transfer of its assets as a result of the domestic proceedings had constituted a violation of its right to property under Article 1 of Protocol No. 1 to the Convention.

43.  The Government maintained that the applicant company had not exhausted the relevant domestic remedy for its complaint as it had not lodged an appeal in accordance with the procedural rules, given that its appeal had been deemed withdrawn owing to its failure to pay the required appeal fee.

44.  The Court observes that the applicant company did indeed fail to exhaust the relevant domestic remedy as it did not submit an appeal conforming with the procedural rules before the Ankara Civil Court (see paragraphs 13-14 above).

45.  It follows that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

46.  The applicant company also raised additional complaints under various Articles of the Convention. Even assuming that these complaints raise different issues than those examined above, the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

47.  It follows that this part of the application must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 June 2025.

 Dorothee von Arnim Péter Paczolay
 Deputy Registrar President