SECOND SECTION
DECISION
Application no. 58388/10
Sabri KAYA
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 February 2019 as a Committee composed of:
Valeriu Griţco, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2010,
Having regard to the declaration submitted by the respondent Government on 12 October 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Sabri Kaya, is a Turkish national, who was born in 1972 and lives in Diyarbakır. He was represented before the Court by Mr M.Z. Dündar, a lawyer practising in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant initiated compensation proceedings against an insurance company following a traffic accident. Subsequently, on 27 May 2010 the first instance court delivered a decision in his favour. As the court fees were not discharged by the defendant party, the applicant could not start the enforcement proceedings.
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained about his inability to secure the enforcement of a judgment, delivered in his favour, as a result of the legislation which had been in force at the time and according to which a judgment could not be served on the party concerned unless court fees had been discharged. He relied on Article 6 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 12 October 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant 1,000 euros to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned cases pending before the European Court of Human Rights.
This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision of the Court pursuant to Article 37 § 1 of the European Convention of Human Rights. In the event of failure to pay this sum within the said three-month period, the government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government acknowledge that holding the applicant responsible for the payment of charges to receive a final copy of the final judgment imposed an excessive burden and restricted his right of access to a court, guaranteed by Article 6 of the Convention. In this connection, the Government point out that following the decision of the Constitutional Court dated 14 January 2010, Section 28 of the Law on Fees has been amended and the sentence now reads “Failure to pay the court fees for the judgment and writ of execution would not prevent the execution of the judgment, its service on the parties’ right to have recourse to appeal proceedings.”
The Government further undertake to remove any obstacles to enforcement by taking all necessary measures to ensure that the writ of execution can be issued, it being understood that the applicant may recover his debt.”
8. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
9. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
10. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
11. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the applicants’ inability to enforce a judgment delivered in their favour due to their impossibility to pay the required court fees to obtain copies of the final judgments (see, for instance Ülger v. Turkey, no. 25321/02, 26 June 2007; Osman Yılmaz v. Turkey, no. 18896/05, 8 December 2009).
12. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
13. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
14. The Court considers that this amount should be converted into Turkish liras at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
15. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
16. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 7 March 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy