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SECOND
SECTION
CASE OF KIRAN v. TURKEY
(Application
no. 23321/09)
JUDGMENT
STRASBOURG
10
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Kıran v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23321/09) 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 a Turkish national, Mr Erdal Kıran (“the
applicant”), on 9 April 2009.
- The
applicant was represented by Mr S. Çakmak, a lawyer practising
in Van. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged, in particular, that his right of access to
court was breached by the domestic court’s refusal of his legal
aid request.
- On
25 May 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1987 and lives in Van.
- In
2008, during his military service, the applicant was disbanded from
the army as he was diagnosed with a psychotic illness by the Van
Military Hospital.
- Subsequently,
on 7 October 2008 he initiated compensation proceedings, claiming
that he had become ill during his military service as a result of the
degrading treatment he had been subjected to in the army. He claimed
that he had been healthy before and that the Ministry of Defence had
failed to provide medical treatment for his condition. The
applicant requested a total of 150,000 Turkish liras (TRY)
(approximately 80,000 euros (EUR) at the time) in both pecuniary
and non-pecuniary damages, submitting the medical records from the
Van Military Hospital in support of his claims. He also requested
legal aid for the court fees, presenting a certificate from the
office of the headman (muhtar)
attesting to his poverty.
- On
28 October 2008 the Supreme Military Administrative Court rejected
the applicant’s legal aid request, after having stated that
pursuant to the Code on Civil Procedure, a legal aid request must be
supported by proof that the case is well-founded and that the
plaintiff does not have the means to pay the required court fees. The
court concluded that the requirements were not met in the applicant’s
case.
- On
31 October 2008 the court informed the applicant that he was to pay a
total of TRY 2,384 (approximately EUR 1,300) in court fees within
thirty days for the proceedings to be continued.
- On
4 February 2009 the Supreme Military Administrative Court decided to
discontinue the compensation proceedings because the applicant had
not paid the necessary court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law in force at the material time are outlined in
the Kaba v. Turkey
judgment (no. 1236/05, §§ 9-12, 1 March 2011).
- In
February 2009, the minimum wage in force was TRY 666
(approximately EUR 320) a month.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained, in
substance, that he had been denied access to a court on account of
the domestic court’s refusal to grant him legal aid. He invoked
Article 6 § 1 of the Convention, which, in so far as relevant,
provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The Government argued that the
applicant had failed to exhaust domestic remedies within the meaning
of Article 35 § 1 of the Convention in that he had not appealed
against the first-instance court’s judgment dated 4 February
2009.
- The Court reiterates that it has
already examined and dismissed the Government’s preliminary
objection in similar cases, holding that the applicants could not be
expected to lodge successful appeals against the judgments
discontinuing their cases, as decisions regarding legal aid are final
under Article 469 of the Code on Civil Procedure (see
Ciğerhun Öner
v. Turkey,
no. 33612/03, § 29, 20 May 2008; Serin
v. Turkey, no. 18404/04, § 24,
18 November 2008; and Sabri Aslan and
Others v. Turkey, no. 37952/04,
§ 22, 15 December 2009). It finds no particular circumstances in
the instant case requiring it to depart from its findings in the
above mentioned cases. It therefore rejects the Government’s
preliminary objection.
- The
Court notes that this complaint 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
- The
Government stated that in domestic law there were two types of court
fees. The first type was a fixed amount established by the Ministry
of Finance at the end of each year, and it was published in the
Official Gazette. The second type was calculated on the basis of the
value of the litigation and varied in each case. They further pointed
out that court fees were required in order to ensure the proper
administration of justice and prevent vexatious applications. In
their observations the Government contended that the decisions
regarding legal aid had been made by the judges on the basis of the
case file and that there was no obligation for them to grant it under
the domestic law. They argued that in the instant case the applicant
had failed to submit the documents attesting to his poverty. In
this respect, they stated that the applicant had been represented by
a lawyer during the domestic proceedings and thus could have sought
legal assistance as regards the documents that would have supported
his legal aid request. The Government therefore concluded that
the domestic court’s refusal to grant legal aid had not
impaired the essence of the applicant’s right of access to
court.
- The
Court reiterates that the Convention is intended to guarantee
practical and effective rights. This is particularly so of the right
of access to court in view of the prominent place held in a
democratic society by the right to a fair trial. It is central 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).
- The
right of access to court is not, however, absolute and may be subject
to restrictions, provided that these pursue a legitimate aim and are
proportionate. Article 6 § 1 leaves to the State a free choice
of the means to be used towards this end but, while the Contracting
States enjoy a certain margin of appreciation in that respect, the
ultimate decision as to the observance of the Convention’s
requirements rests with the Court (see Kreuz v. Poland, no.
28249/95, § 53, ECHR 2001 VI, and Mehmet and Suna Yiğit
v. Turkey, no. 52658/99, § 33, 17 July 2007). The
institution of a legal aid scheme constitutes one of those means. It
may therefore be acceptable to impose conditions on the grant of
legal aid on the basis, inter alia, of the financial situation
of the litigant or his or her prospects of success in the proceedings
(see Steel and Morris, cited above, §§ 60-62 and
Wieczorek v. Poland, no. 18176/05, § 37, 8 December
2009). The question whether the provision of legal aid is necessary
for a fair hearing must be determined on the basis of the particular
facts and circumstances of each case and will depend, inter alia,
upon the importance of what is at stake for the applicant in the
proceedings, the complexity of the relevant law and procedure and the
applicant’s capacity to represent him or herself effectively.
- The
Court notes that the court fees that the applicant was required to
pay were calculated on the basis of the value of the litigation and
amounted to TRY 2,384 while the monthly minimum
wage was TRY 666 at the time. Although the Government argued
that the applicant had failed to submit documents attesting to his
poverty, the Court observes that he submitted a certificate proving
his poor financial situation in support of his legal aid request
before the Supreme Military Administrative
Court. It is clear from that certificate
delivered by the office of the headman that the applicant has no
income and that he is in a poor financial situation (see paragraph 7
above). Nevertheless, his legal aid request was rejected by the
Supreme Military Administrative Court, which did not indicate a
specific reason in its decision but merely referred to the relevant
legislation.
- 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 ground, inter alia, that the
legal aid system in Turkey fails to offer individuals substantial
guarantees to protect them from arbitrariness (see Bakan v.
Turkey, no. 50939/99, §§ 74-78, 12 June 2007; Mehmet
and Suna Yiğit v. Turkey, cited above, §§
31-39; Eyüp Kaya v. Turkey, no. 17582/04, §§
22-26, 23 September 2008; and Kaba, cited above, §§ 19 25).
The Court has also examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases. It considers that the refusal of the
applicant’s legal aid request deprived him of the possibility
of submitting his case before a tribunal and concludes that in the
instant case there has been a disproportionate restriction on the
applicant’s right of access to a court.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- Relying
upon Article 3 of the Convention, the applicant complained about the
alleged degrading treatment he had been subjected to during his
military service.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court further notes that the main Convention question raised in the
instant application was the applicant’s right of access to a
court, pursuant to Article 6 § 1 of the Convention. Having found
a violation of this provision (see paragraphs 17-20 above), the Court
considers that there is no need to make a separate ruling on the
applicant’s complaint under Article 3 of the Convention.
In reaching this decision the Court has particular regard to the fact
that the applicant’s compensation claim was not examined by the
Supreme Military Administrative Court and that the Court cannot
determine the issue as a first instance court itself (see Mehmet
and Suna Yiğit, cited above, §
43).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
- The
Court further reiterates that the most appropriate form of redress
for a violation of Article 6 § 1 would be to ensure that the
applicant, as far as possible, is put in the position in which he
would have been had this provision not been disregarded (see Mehmet
and Suna Yiğit, cited above,
§ 47). The Court finds that this principle applies in the
present case as well. Consequently, it considers that the most
appropriate form of redress would be to quash or otherwise set aside
the Supreme Military Administrative Court’s decision dated 4
February 2009 (see paragraph 10 above) and restart the proceedings,
in accordance with the requirements of Article 6 § 1 of the
Convention, should the applicant so request (see mutatis
mutandis, Şirin v. Turkey,
no. 47328/99, § 30, 15 March 2005).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible unanimously;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 3 of the Convention;
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Section Registrar President
