SÖNMEZ v. TÜRKİYE

SECOND SECTION

DECISION

Application no. 66261/17
Dengiz SÖNMEZ
against Türkiye

The European Court of Human Rights (Second Section), sitting on 12 March 2024 as a Committee composed of:

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 66261/17) 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 16 June 2017 by a Turkish national, Mr Dengiz Sönmez (“the applicant”), who was born in 1961, lives in Ankara and was represented by Mr M.N. Eldem, a lawyer practising in Ankara;

the decision to give notice of the complaint concerning Article 6 § 1 of the Convention to the Turkish Government (“the Government”), 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, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged breach of the applicant’s right of access to a court guaranteed by Article 6 § 1 of the Convention on account of the dismissal of his compensation claim for being out of time.

2.  On 5 June 2009 the applicant participated in a demonstration held by the trade union Eğitim ve Bilim Emekçileri Sendikası, also known as “Eğitim-Sen”, in Ankara. During the police intervention, he was injured in the right eye, resulting in a loss of 80% of his vision capacity (for the details of the events, see Eğitim ve Bilim Emekçileri Sendikası and Others v. Türkiye, no. 2389/10, §§ 1-14, 20 September 2022).

3.  In 2010 the applicant instituted proceedings before the 14th Chamber of the Ankara Administrative Court seeking compensation for the damage suffered due to the use of disproportionate force by the police. He requested 250,000 Turkish liras (TRY) for pecuniary damage and TRY 100,000 for non-pecuniary damage.

4.  During the course of the proceedings, the court sent a letter to the Social Security Institution (“SSI”) requesting information with respect to the payments that had been made to the applicant in the context of his disability retirement on account of his eye injury and ordered, in addition, an expert report to determine the exact amount of pecuniary damage corresponding to the applicant’s loss of income, that is to say, the amount of income he would have earned if he had continued to work until his pension age. The expert assessed the pecuniary damage sustained by the applicant at TRY 330,167. He also noted that the applicant, as a teacher, could have earned an additional TRY 165,168 through further pecuniary benefits, such as extra lessons, and per diems. After having assessed all the information submitted by the SSI and the conclusions of the expert report, the court calculated the exact amount of material damage sustained by the applicant to be TRY 156,881. However, the court noted that as the applicant had been partly at fault, a lower award for pecuniary damage was justified and reduced it by 50%.

5.  On 31 December 2012 the 14th Chamber of the Ankara Administrative Court partially granted the applicant’s claim and ordered the payment of TRY 78,440 in respect of pecuniary compensation and TRY 10,000 in respect of non-pecuniary compensation.

6.  On 5 June 2013 the applicant lodged an appeal with the Supreme Administrative Court seeking to have the decision of the administrative court set aside in so far as it had rejected his claims in part and had awarded a lower amount of compensation than that requested.

7.  On 20 January 2016 the Supreme Administrative Court quashed the decision of the 14th Chamber of the Administrative Court holding that the damage had been caused by the applicant’s own acts. It followed that no fault could be attributed to the State authority, on the basis of the notion of service fault (hizmet kusuru), and thus there were no grounds to award compensation to the applicant.

8.  On 26 January 2017 the 14th Chamber of the Administrative Court issued a decision in line with that of the Supreme Administrative Court and rejected the applicant’s case.

9.  On 2 March 2022 the Supreme Administrative Court upheld the decision of the 14th Chamber of the Administrative Court.

10.  The Supreme Administrative Court subsequently dismissed a request for the rectification of its decision of 2 March 2022.

11.  On 1 February 2013 the applicant applied to the 6th Chamber of the Administrative Court and requested an additional amount of TRY 60,000 for compensation in respect of pecuniary damage in the light of the amount established in the expert report submitted to the 14th Chamber of the Administrative Court during the main proceedings (see paragraph 4 above).

12.  On 7 February 2013 the 6th Chamber of the Administrative Court dismissed the applicant’s claim for compensation on the ground that he had submitted it too late. The administrative court noted that the applicant neither had the right to increase the amount initially requested nor could he reserve his rights for the remainder during the proceedings before the administrative courts. It concluded that his second attempt to be awarded additional compensation for the same damage did not comply with the statutory time‑limit stipulated in Section 13 of Law no. 2577.

13.  On 20 January 2016 the Supreme Administrative Court upheld the decision of the first-instance court.

14.  On 15 December 2016 the Constitutional Court, examining the case from the standpoint of the right of access to a court, found an individual application by the applicant inadmissible. It considered that the time-limit in question had not restricted the access to court left to the applicant in such a way or to such an extent that the very essence of the right to a court was impaired. The decision of the Constitutional Court was notified to the applicant on 26 December 2016.

15.  The relevant domestic law and practice is to be found in Eser v. Turkey ((dec.), no. 78852/11, §§ 20 and 28, 27 September 2016).

16.  It should be noted that on 30 April 2013 Law no. 6459 amending Article 16 of the Code of Administrative Procedure (Law no. 2577) entered into force. Parties have since then been able to revise their initial claims in full remedy actions without being constrained by a limitation period or by other procedural grounds, provided that the related costs are paid. In addition to that, Provisional Article 7 of Law no. 2577 provided that as of 30 April 2013 the aforementioned amendment could be applied to all pending cases including appeal proceedings.

17.  In this respect, the Government submitted 12 different judgments of the 10th Section of the Supreme Administrative Court, adopted on various dates between 19 June 2013 and 10 September 2019. These judgments confirmed that pursuant to the changes introduced by the amendment to Law no. 2577, the claimant party/parties were entitled to lodge their request to increase their initial claim with the administrative courts even though the latter had already decided on their cases, provided that one of the parties had lodged an appeal against those courts’ decisions. The revision of the initial claim had to be made by way of lodging a petition with the administrative court which then had to send it to the defendant party for comments. The claimant party/parties were entitled to raise their initial claims during the rectification proceedings as well.

18.  The applicant complained under Article 6 § 1 of the Convention of the dismissal of his claim in the second set of proceedings, leading to the absence of a remedy that would have allowed him to claim the entire compensation amount determined by the expert during the course of the domestic proceedings.

THE COURT’S ASSESSMENT

19.  In their observations, the Government raised various preliminary objections, including that the applicant had lost his victim status, that he had not exhausted domestic remedies and that the entire application was, in any event, manifestly ill-founded. The applicant contested the Government’s submissions particularly in respect of his lack of victim status and the non-exhaustion of domestic remedies. He stressed that at the date when he had brought his action before the 6th Chamber of the Administrative Court (see paragraph 11 above), the domestic law in force at that time had not allowed the claimant to revise his initial claim. He further pointed out that even if he had had recourse to the new domestic remedy introduced by the amendment to the law, the rules of lis pendens and res judicata would have precluded him from increasing his initial claim.

20.  The Court does not consider it necessary to examine the admissibility objections raised by the Government, as the present case is in any event inadmissible for the reasons outlined below.

21.  In the instant case the applicant claims that he was denied access to a court on account of the dismissal of his claim lodged in the proceedings before the 6th Chamber of the Administrative Court (“the second set of proceedings”) as being out of time. That being the case the Court will limit its examination only to these proceedings. However, in order to determine notably whether there was a “genuine” and “serious” dispute over civil rights in this second set of proceedings in order for Article 6 § 1 of the Convention to apply (see the references in paragraph 25 below), the Court must also take into account the first set of proceedings.

22.  The Court reiterates that it has found in a number of cases brought under Article 6 § 1 of the Convention against Türkiye that the procedural rule at the time preventing litigants from amending their pecuniary claims in the course of administrative proceedings constituted a disproportionate restriction of the applicants’ right of access to a court given that applicants could not be expected to have known the full extent of their damage, which had been only brought to light through the assessments made by the experts during the initial compensation proceedings, at the outset of those proceedings (see Fatma Nur Erten and Adnan Erten v. Turkey, no. 14674/11, §§ 24-33, 25 November 2014; Mikail Tüzün v. Turkey, no. 42507/06, §§ 22‑24, 27 November 2018; and Tamer Tanrıkulu v. Turkey, no. 36488/08, 29 November 2016). The sole reason why the applicants were prevented from claiming the full amount of damages – as assessed by an expert in the proceedings and not assessed differently by the domestic courts – had been the prohibition of amending claims in administrative law proceedings. The circumstances of the present case are however different.

23.  The Court notes that the 14th Chamber of the Ankara Administrative Court, in the first set of proceedings, relied only partially on the amount of damages calculated by the expert and considered the amount to be TRY 156,881. Although the expert assessed the damage to be at an amount higher than what the applicant had initially claimed when he brought the proceedings, the fact remains that the domestic court did not agree entirely with that assessment and rejected the expert’s calculation in part (see paragraph 4 above). The Court therefore sees no ground to support the argument that the applicant’s inability to claim the full amount of damage established by the expert resulted from the procedural rule in question. On the contrary it observes that the amount exceeding the applicant’s initial claim was rejected already in the first set of proceedings on the merits.

24.  Turning to the impugned second set of proceedings, the Court reiterates 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; and, finally, 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 Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018, with further references, and Grzęda v. Poland [GC], no. 43572/18, § 257, 15 March 2022, with further references).

25.  The Court recalls that in the case of Okçu v. Turkey (no. 39515/03, 21 July 2009), it already established that before the introduction of the amendment to Law no. 2577, bringing an additional action after the submission of the expert report had not afforded prospects of success as the request for further compensation had to be made within the same time-limit as the original action (ibid., § 66). Accordingly, the dismissal of the applicant’s second action was in any event foreseeable, and the applicant had no prospect of reversing the situation of which he complained (see Astikos Oikodomikos Synetairismos Nea Konstantinoupolis v. Greece (dec.), no. 37806/02, 20 January 2005; Stavroulakis v. Greece (dec.), no. 22326/10, § 9, 28 January 2014; and Arvanitakis and Others v. Greece (dec.), no. 21898/10, § 12, 26 August 2014).

26.  In these circumstances, the “dispute” raised before the 6th Chamber of the Administrative Court by the applicant was neither “genuine” nor “serious”, meaning that Article 6 § 1 is not applicable to those second proceedings (compare, mutatis mutandis, Stavroulakis, cited above, § 10, and Arvanitakis and Others, cited above, § 13).

27.  Therefore, the application must 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 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President