[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF TANAY v. TURKEY
(Application
no. 18753/04)
JUDGMENT
STRASBOURG
9 December
2008
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 Tanay v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18753/04) 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 Mehmet Tanay (“the
applicant”), on 11 February 2004.
- The
applicant was represented by Mrs Fatma Kalsen Demirdaş, a lawyer
practising in Tunceli. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicant alleged, in particular, that a factual error made by the
Court of Cassation had infringed his right of access to court, in
violation of Article 6 of the Convention.
- On
20 November 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Istanbul.
- On
18 November 1997 the General Directorate of National Roads and
Highways (hereinafter “the Directorate”) expropriated
4,309 square metres of the applicant's land in Tunceli. The
expropriation decision was communicated to the applicant on 16 August
2000. According to the domestic procedure, the applicant had thirty
days, which began the day after the decision was communicated to him,
to ask for an increase in the amount of compensation.
- On
1 September 2000 a certain Mr Sezai Yıldız, who had been
authorised by the applicant to appoint a lawyer for him, had a power
of attorney drawn up at a notary public, appointing Mrs Fatma
Kalsen Demirdaş as legal counsel to represent the applicant.
- On
19 September 2000 the applicant, with the assistance of his lawyer
Mrs Demirdaş, brought an action before the Tunceli Civil Court
(hereinafter the “Tunceli Court”), seeking increased
compensation. Mrs Demirdaş requested the court to accept the
case despite the expiry of the statutory time-limit on 17 September
2000, as she had had health problems preventing her lodging the case
earlier.
- On
9 November 2000 the Tunceli Court asked the Forensic Medicine
Institute in Ankara to clarify whether Mrs Demirdaş had had
health problems at the relevant time and whether those problems had
been of a nature to render it impossible for her to come to the court
house and lodge the applicant's case within the statutory time-limit.
- On
22 May 2001 the Erzurum branch of the Forensic Medicine Institute
forwarded to the Tunceli Court a number of medical reports,
confirming that Mrs Demirtaş had been ill between 23 August 2000
and 17 September 2000 and had thus been unable to lodge the case
within the statutory time-limit.
- The
Tunceli Court accepted the medical report and began examining the
merits of the case. In the course of the proceedings it had regard to
the zone plan, the expropriation documentation, two principal and two
additional expert reports, and awarded the applicant additional
compensation on 31 May 2001. The Directorate appealed.
- On
3 March 2003 the Court of Cassation quashed the decision, quoting the
applicant's name, instead of that of his representative, as the
person who had been ill. The Court of Cassation stated that the
applicant had given a power of attorney to Fatma Kalsen Demirdaş
so that, even if he had been ill, Mrs Kalsen Demirdaş could have
lodged the claim on his behalf within the statutory time-limit. The
Court of Cassation consequently held that the case had been
time-barred on 17 September 2000.
- In
an application for rectification Mrs Demirdaş argued that it was
she who had been ill, not her client. The Court of Cassation had
therefore made a factual error which should be rectified.
- On
12 May 2003, the Court of Cassation held that “amending the
factual error would not affect the outcome”, and dismissed the
rectification request.
- On
4 July 2003 the Tunceli Court concurred with the Court of Cassation's
decision and dismissed the case. On 13 November 2003 the Court of
Cassation upheld the final ruling.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to sections 166-168 of the Code of Civil Procedure, if a person or
his or her legal representative is unable to comply with a statutory
time-limit for reasons outside his or her control, that individual is
given an additional ten-day period starting on the date when the
situation giving rise to the inability to comply has ended.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the Court of Cassation's mistake had
violated his right to a fair hearing within the meaning of Article 6
of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 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 accepted that the Court of Cassation had made an error by
referring in its decision to the applicant as the person who had been
ill. The Government also acknowledged that, according to the
applicable legislation and the case-law of the Court of Cassation, if
a party in domestic proceedings fell ill and became unable to comply
with a statutory time-limit, he or she would be given an additional
ten-day period starting on the date of recovery from the illness.
- However,
the Government were of the opinion that the applicant's legal
representative's illness had not justified her failure to comply with
the time-limit. Holding otherwise would mean that, whenever a party
missed a time-limit, he or she would obtain a medical report from a
medical institute and request extra time.
- The
Government alleged that the applicant's legal representative had
pretended to have been ill only when she realised that she had missed
the time-limit. It was also remarkable, according to the Government,
that on 1 September 2000 Sezai Yıldız had given a
power of attorney to Mrs Demirdaş to represent the
applicant, yet, according to the medical report, Mrs Demirdaş
had been ill on that day.
- Furthermore,
although it had been open to Mrs Demirdaş to delegate one of her
colleagues to file the case on her behalf, she had failed to do so
and had acted in an irresponsible manner, causing a disadvantage to
the applicant.
- Lastly,
the Government reminded the Court that it was not a court of first
instance; it was not for the Court to evaluate the evidence and
decide as if it were a first-instance court.
- The
applicant maintained his complaints. He submitted that there existed
official medical records showing that his legal representative had
been treated at the hospital. Thus, the distrust displayed by the
Government towards his legal representative, as well as towards the
official medical institutions, had been unjustified.
- As
regards the Government's submission that his legal representative had
accepted the power of attorney at a time when she was purportedly
ill, the applicant referred to the applicable legislation which
stipulated that a lawyer did not have to be present when a power of
attorney was signed at a notary public by his or her client.
Furthermore, the applicant maintained that he did not know at the
time of giving the power of attorney that his representative was ill.
- Lastly,
the applicant argued that the main issue in the case had been the
factual error made by the Court of Cassation and that that factual
error had infringed his right of access to court.
- The
Government conceded that the Court of Cassation had made a factual
error. Furthermore, the Government have not disputed that the
applicant was penalised by the Court of Cassation on account of the
error for which he was not responsible (see, mutatis mutandis,
Platakou v. Greece, no. 38460/97, § 39,
ECHR 2001 I). What the Government did challenge is the veracity
of the applicant's claim that his legal representative had been ill.
- The
Court notes that the veracity of this claim and the accuracy of the
medical reports issued by the Forensic Medicine Institute – a
State body – were never the subject of the domestic courts'
examination as there had never been any suggestion of impropriety in
the domestic proceedings. Indeed, the Government's accusations about
the health of the applicant's legal representative are not supported
by any evidence and, as such, the Court cannot attach any importance
to them.
- Similarly,
the Court deems it unnecessary to examine the Government's arguments
concerning whether or not the legal representative had been right in
accepting the power of attorney when she was ill and whether or not
she should have delegated another lawyer to file the applicant's case
on her behalf. These are issues for the domestic courts to examine;
as pointed out by the Government, the Court is not a court of first
instance. Nevertheless, it is important to note that these matters
were not raised and examined by the domestic courts and that the
Court of Cassation's conclusion that the applicant had failed to
comply with the time-limit was not based on these issues.
- The
Court of Cassation's decision was based solely on the erroneous
mention of the applicant's name, instead of that of his legal
representative, as the person who had been ill. It accordingly
quashed the decision in which the applicant had been awarded
additional compensation for the expropriation of his land. When this
error was brought to its attention in rectification proceedings, the
Court of Cassation concluded that amending their error would not
affect the outcome of the case.
- The
Court reiterates that it is not the Court's function to deal with
errors of fact or law allegedly committed by a national court unless
and in so far as they may have infringed rights and freedoms
protected by the Convention (see P.G. and J.H. v. the United
Kingdom, no. 44787/98, § 76, ECHR 2001-IX). Furthermore, it
is in the first place for the national authorities, and notably the
courts, to interpret domestic law and the Court will not substitute
its own interpretation for theirs in the absence of arbitrariness
(see Tejedor García v. Spain, 16 December 1997, § 31,
Reports of Judgments and Decisions 1997 VIII and the
cases cited therein).
- In
the present case it is necessary to examine the consequences of the
factual error made by the Court of Cassation since it had a bearing
on the determination of the applicant's civil rights under Article 6
of the Convention. The Court considers that the justification put
forward by the Court of Cassation when refusing to correct the error
(see paragraph 14 above) lacked any relevant reasoning. In
the opinion of the Court, contrary to what was suggested by the Court
of Cassation, correcting the factual error would have made
a critical difference to the assessment of the
applicant's compliance with the domestic rules of procedure. The
Court thus concludes that the Court of Cassation's unreasoned
decision based on the factual error violated the applicant's
rights under Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant further complained that the Court of Cassation's refusal to
correct its error had also violated his rights under Article 1 of
Protocol No. 1 to the Convention.
- 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
present application is the applicant's rights guaranteed by Article 6
§ 1 of the Convention. Having found a violation of that
provision (paragraph 33 above), the Court considers that there is no
need to make a separate ruling on this remaining complaint. In
reaching this decision the Court has particular regard to the fact
that the Court of Cassation did not examine the merits of the appeal
lodged by the Directorate.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 21,877 euros (EUR) in respect of pecuniary and EUR
10,000 in respect of non-pecuniary damage.
- The
Government contested the claims and argued that the sums were
excessive and not supported by evidence.
- As
regards pecuniary damage, the Court reiterates that the most
appropriate form of redress for the 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 v. Turkey,
no. 52658/99, § 47, 17 July 2007). Consequently,
it considers that the most appropriate form of redress would be to
restart the appeal proceedings, correcting the factual error, should
the applicant so request (see, mutatis mutandis, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003).
- As
regards non-pecuniary damage, deciding on an equitable basis, the
Court awards the applicant EUR 3,000.
B. Costs and expenses
- The
applicant also claimed EUR 677 for the costs and expenses incurred
before the domestic courts and EUR 1,423 for those incurred before
the Court. The claim made in respect of costs and expenses incurred
before the domestic courts and the claim made in respect of the costs
and expenses incurred before the Court included the sums of EUR 389
and EUR 1,142 respectively, in respect of his lawyer's fees. In
support of the claims for these fees the applicant submitted a copy
of the agreement signed by both himself and his lawyer. The remaining
EUR 569, for which the applicant submitted receipts, was claimed in
respect of domestic court fees and translation expenses.
- The
Government contested the claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,800 covering costs
under all heads. The Court considers that the remaining EUR 300 had
been claimed in respect of court fees and other costs incurred before
the Tunceli Court prior to the Court of Cassation's factual error. As
such, it was not incurred for the prevention or redress of the
violation (see Société Colas Est and Others v.
France, no. 37971/97, § 56, ECHR 2002 III).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- 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 1 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following sums, plus any tax that may be chargeable
to the applicant, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, and
(ii) EUR
1,800 (one thousand eight hundred euros) in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
