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SECOND SECTION

 

 

 

 

 

 

 

 

 

CASE OF DIRAMA v. TURKEY

 

(Application no. 20797/07)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

 

13 November 2018

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Dırama v. Turkey,

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

Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 16 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20797/07) 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, Ms Nazlı Dırama ("the applicant"), on 1 May 2007.

2. The applicant was represented by Mr H. Genç a lawyer practising in Aksaray. The Turkish Government ("the Government") were represented by their Agent.

3. On 20 June 2017 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1967 and lives in Muğla.

6. On an unspecified date the applicant brought an enforcement order through a bailiff's office against her former husband, G.F., to collect alimony in arrears and accrued interest.

7. On 9 March 2006 G.F. objected to that order by bringing a case against the applicant before the Datça Enforcement Court. He requested that the court declare the enforcement order null and void on the grounds that he had made the payments in question in full.

8. In the first hearing G.F.'s representative requested the court to take out an expert report to determine whether the payments he had made corresponded to the alleged debt. The court adjourned its examination on the question whether an expert report would be sought to a hearing to be held on 10 May 2006.

9. In that hearing, the applicant's representative left it to the court's discretion for an expert to be appointed concerning the determination of the amounts that were already paid. The court therefore ruled for an expert to be appointed and scheduled another hearing for 7 June 2006.

10. In the meantime, but before the hearing of 7 June 2006, the applicant's representative requested that he be excused from that hearing since he had another scheduled court hearing elsewhere.

11. The court held the hearing as scheduled but noted that the applicant's representative was excused. In that hearing, the court noted that the expert report had been submitted in the case-file and read its contents out in the presence of G.F.'s legal representative. The latter asked the court to rule in accordance with the findings in the expert report, which had concluded that all the relevant alimony payments had been made. The court scheduled a hearing for 21 June 2006 holding that the absent party be notified.

12. On 21 June 2006, in its final hearing, the court ruled against the applicant on the basis of the expert report in question. Neither the applicant nor her representative was present at that hearing. There is no indication in the transcript of the hearing that suggests that the court examined whether the applicant's representative had been notified in due time.

13. On 31 July 2006 the applicant's representative lodged an appeal before the Court of Cassation, arguing that the notice for the court hearing of 21 June 2006 had been served on him only on 26 June 2006, resulting in him and her client missing the opportunity to participate in the hearing and submit their observations on the findings of the expert report. He explained in that connection that the expert's calculations had been erroneous and did not correspond to the bank transfer receipts in the case-file.

14. On 5 December 2006 the Court of Cassation upheld the decision of 21 June 2006 without responding to the applicant's arguments.

15. The applicant's rectification request against that decision was rejected on 13 March 2007.

II. RELEVANT DOMESTIC LAW

16. The relevant provisions of the Code of Civil Procedure (Law no. 1086), which was in force at the time of the events, provided as follows:

Article 73

"Save for the exceptions provided by law, the judge may not rule on the case unless both parties are duly invited to submit their observations."

Article 283

"The judge may ask further questions to the expert for the purpose of clarifying incomplete or ambiguous information in the report. The parties may request the same one week from the communication of the report to them.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17. The applicant complained that as a result of the late delivery of the notice, she was deprived of an opportunity to comment on the expert report on which the first-instance court based its decision. The applicant relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ..."

18. The Government contested that argument.

A. Admissibility

19. The Court notes that the application 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

20. The applicant maintained her arguments.

21 . The Government did not contest the fact that the notice for hearing of 21 June 2006 was belated. They however argued that the expert report in question had been accessible for the applicant before that date. In that connection they submitted a copy of the minutes of the hearing of 10 May 2006 on which the applicant stated in writing that she had received the expert report in person. Accordingly, the Government argued that the applicant could have submitted her arguments against the report within a week from that date. The Government further argued that the findings of the expert were related only to the determination of the amount of money deposited into the applicant's account and not any other fact that was not previously disclosed to the applicant. It could not therefore be said that it required applicant's comments. Finally, they argued that the applicant had had the opportunity to raise her objections against the report in her appeal, and the Court of Cassation dismissed them as ill-founded.

22. The Court reiterates that the principle of equality of arms requires that each party should 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-à-vis his or her opponent (see Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 33, Series A no. 274, and Avotiņš v. Latvia [GC], no. 17502/07, § 119, 23 May 2016). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party. What is at stake is the litigants' confidence in the workings of justice, which is based on, inter alia , the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria , no. 30428/96, §§ 17-18, 6 February 2001).

23. Article 6 of the Convention cannot be construed as providing for a specific form of service of court mail (see, for example, Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004, and Bats v. Ukraine (dec.), no. 59927/08, § 37, 24 January 2017). Nor are the domestic authorities required to provide a perfectly functioning postal system (see Zagorodnikov v. Russia, no. 66941/01, § 31, 7 June 2007). Nonetheless, the failure of the authorities to apprise a party of a hearing in such a way so as for it to have an opportunity to exercise his or her right to attend may, in certain circumstances, raise issues under Article 6 § 1 (see Nikoghosyan and Melkonyan v. Armenia , nos. 11724/04and 13350/04, § 37, 6 December 2007). The Court considers that in the interests of the administration of justice a litigant should be notified of a court hearing in such a way as to not only have knowledge of the date and place of the hearing, but also to have enough time to prepare his or her case and to attend the court hearing. A formal dispatch of a notification letter without any confidence that it will reach the applicant in good time cannot be considered by the Court as proper notification (see Fridman v. Lithuania , no. 40947/11, § 26, 24 January 2017 and the cases cited therein).

24. In the present case, there is no dispute that the notice for the hearing to be held on 21 June 2006 did not reach the applicant's representative in due time. It is also undisputed that in this hearing, the court gave its ruling on the case on the basis of the expert report. As the expert report in question was only delivered in the previous hearing from which the applicant's representative was excused, it cannot be said that a practical and effective opportunity to present her arguments were made available to the applicant. As regards the Government's argument that the applicant herself had received the expert report in question in any event (see paragraph 21 above), the Court observes that there is no indication when she exactly took out a copy of the report from the domestic court's registry since her acknowledgement of its receipt was marked on the minutes of the hearing of 10 May 2006 which is a date predating the court's decision to seek an expert report. The Court therefore considers that no conclusions can be drawn from this fact alone. What is important is that, the other party had the opportunity to submit his comments on the report while the applicant lost hers on account of the late delivery of the notice. The Court further considers that it cannot be determined whether this short-coming was remedied at the appeal stage for the generic reasons given by the Court of Cassation when they dismissed the applicant's appeal did not touch upon and dismiss her specific complaint about the failure of timely notification of the impugned hearing which resulted in her losing the opportunity to make submissions to the court.

25. The foregoing considerations are sufficient to conclude that there was an infringement of the applicant's right to a fair hearing enshrined in Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

27. The applicant claimed 50,000 euros (EUR) in respect of non-�pecuniary damage and EUR 10,000 for costs and expenses.

28. The Government submitted that the applicant's claims were unsubstantiated and in any event excessive.

29. The Court considers that the finding of a violation of Article 6 § 1 constitutes in itself sufficient just satisfaction in respect of any non-�pecuniary damage suffered by the applicant. As to costs and expenses, Rule 60 of the Rules of Court requires applicants to submit documentary evidence in support of their just-satisfaction claims. None at all has been submitted in the present case. The Court therefore dismisses the applicant's claims in respect of costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

 

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

 

4. Dismisses the applicant's claim for just satisfaction.

Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President