SECOND SECTION
DECISION
Applications nos. 28523/11 and 40473/11
İhsan Hasan PİLAV against Turkey
and Meltem RAPAYAZDIÇ against Turkey
The European Court of Human Rights (Second Section), sitting on 19 March 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 applications lodged on 1 April 2011,
Having regard to the decision of 31 January 2017,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr İhsan Hasan Pilav, is a Turkish national, who was born in 1968 and lives in Istanbul. The applicant in the second case, Ms Meltem Rapayazdıç, is a Turkish national, who was born in 1971 and lives in Istanbul. They were represented before the Court by Mr S. Çığgın, a lawyer practising in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2003 the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”) took over the management and control of Rumeli Teknik Komünikasyon A.Ş, where both applicants were board members.
5. On 28 June 2007, compensation proceedings were initiated against four board members, including the applicants, alleging that the company had encountered severe financial difficulties due to their misconduct.
6. On 1 April 2010 the Istanbul Commercial Court found against the applicants and held that they had to pay 2,207,617 Turkish liras (TRY) (approximately 1,280,000 euros (EUR)) by way of compensation to the Fund.
7. The applicants requested to file an appeal and asked to be awarded legal aid to be exempt from paying the relevant appeal fees.
8. No reply was received from the Istanbul Commercial Court regarding the applicants’ legal aid request.
9. On 26 July 2010 the Registry of the Istanbul Commercial Court sent a warning to the applicants and ordered them to pay TRY 32,783 each (approximately EUR 16,000) if they wished to pursue their appeal request.
10. When the applicants failed to make the necessary payment, on 16 September 2010 the Istanbul Commercial Court concluded that the applicants had waived their right to appeal. The applicants appealed against this decision and on 25 April 2012 the Court of Cassation quashed the decision of 16 September 2010 due to procedural reasons. The case was accordingly remitted before the Istanbul Commercial Court.
11. On 24 June 2012 the Istanbul Commercial Court sent a warning to the applicants and asked them to pay the relevant court fees to file an appeal against the judgment of 1 April 2010. On 12 September 2012 the Istanbul Commercial Court concluded that the applicants had waived their right to appeal. In the decision, it was indicated that an appeal could be filed against this finding. The decision of 12 September 2012 was notified on 27 September 2012. No appeal was filed against the decision of 12 September 2012 and it became final on 5 October 2012.
COMPLAINT
12. The applicants complained under Article 6 of the Convention about the refusal of the domestic courts to grant them legal aid. They alleged that the domestic authorities had breached their right to access to a court by refusing their legal aid request to be exempt from paying the relevant appeal fee.
THE LAW
13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
14. Relying on Article 6 of the Convention, the applicants stated that as a result of the refusal of the domestic courts to grant them legal aid to be exempt from paying appeal fees, they had been deprived of their right to access to a court.
15. The Government argued that the applicants had not exhausted the domestic remedies. At the outset, they stated that the applicants had failed to file an appeal against the decision of 12 September 2012 which had refused their legal aid request. They further pointed out that as this decision became final on 5 October 2012, the applicants could have applied to the Constitutional Court.
16. The applicants did not comment on the Government’s preliminary objections.
17. The Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts. Yet, the rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see Radomilja and Others v. Croatia [GC], no. 37685/10, § 117, 20 March 2018; Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010; and İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006).
18. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and İçyer, cited above).
19. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it a remedy to be used (see Uzun v. Turkey (dec.), no. 10755/13, §§ 68-71, 30 April 2013).
20. The Court therefore takes the view that the exception referred to in paragraph 18 above, should be applied in the present case as well as the decision refusing the applicants’ legal aid became final on 5 October 2012 and thus fell within the Constitutional Court’s temporal jurisdiction. Accordingly, the Court observes that the applicants failed to exhaust this remedy before the Constitutional Court.
21. In view of the foregoing, the Court considers that there is no need to examine the Government’s remaining preliminary objection given that the application is in any case inadmissible for non-exhaustion of domestic remedies.
22. The Court concludes that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 11 April 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy