SECOND SECTION

CASE OF ONAR v. TURKEY

(Application no. 13160/07)

JUDGMENT

STRASBOURG

16 December 2014

This judgment is final but it may be subject to editorial revision.
In the case of Onar v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	András Sajó, President,
	Helen Keller,
	Robert Spano, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated in private on 25 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 13160/07) 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 ten Turkish nationals, Mr Sıddık Onar, Ms Remziye Onar, Ms Özlem Onar. Ms Pınar Onar, Ms İlke Onar Mr Mazlum Onar, Mr Doğan Onar, Mr Sezer Onar. Mr Suat Onar and Mr Erkan Onar (“the applicants”), on 13 March 2007.
2.  The applicants were represented by Mr Z. Aydın and Mr A. Turgut, lawyers practising in Batman. The Turkish Government (“the Government”) were represented by their Agent,
3.  On 25 May 2010 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1964, 1958, 1993, 1997, 1997, 2000, 1998, 1994, 1990 and 1989 respectively and live in Batman.
5.  On 26 June 2005, the first two applicants’ son and the other applicants’ brother, A.O., aged fourteen at the time, went into Batman Stream to swim and subsequently drowned.
6.  According to the applicants, the uncontrolled draining of sand from Batman Stream of Dicle River changed the stream’s ecological balance. Eventually, holes and vortexes which occurred as a result of uncontrolled sand drain allegedly contributed to A. O.’s drowning.
7.  Criminal proceedings where initiated against the Beysan joint stock company (“the company”), which was conducting the sand mining business at the time of events, and the Batman Governor’s office which issued the necessary permits to run the sand mine. On 5 March 2005, the criminal proceedings before the Batman public prosecutor’s office concluded with a decision not to prosecute. On 12 March 2006, the first applicant appealed against the non-prosecution decision. However, on 19 March 2007 his appeal request was also rejected by the Batman Assize Court.
8.  While the criminal proceedings were pending, the first applicant requested the determination of evidence from the Batman Magistrates’ Court into the incident which led to A.O.’s death. Two expert reports were issued following the scene investigation, conducted by the Batman Magistrates’ Court on 8 July 2005. According to the expert reports, it was stated that the uncontrolled sand draining from Batman Stream changed the natural flow of the water and caused artificial holes and vortexes which amounted to three meters in depth in some parts. Despite these dangers, there were no warning signs.
9.  On 27 July 2005 the applicants being convinced that the failure of the authorities and the company to take necessary safety measures to protect A.O.’s right to life, applied to the civil court of first instance with a compensation request. They sought a total of 75,000 Turkish liras (TRY) (46,500 euros (EUR) at the time) in compensation for both pecuniary and non-pecuniary damages.
10.  The applicants also requested legal aid for the court fees. On 15 August 2005, the Batman Civil Court of First Instance ordered the Security Directorate in Batman to investigate the economical means of the applicants. According to the report submitted by the Security Directorate, it was revealed that the applicants were unemployed and lived on state benefits and help from their neighbours. Nevertheless, the trial court rejected the applicants’ legal aid request on the basis of Sıddık Onar, the father of the deceased’s, age and his ability to work.
11.  On 1 December 2006 the trial court notified the applicants that they were required to pay a court fee of TRY 214.76 (approximately EUR 115) within ten days in order to continue the proceedings and that the proceedings would be discontinued if they failed to do so.
12.  On 29 December 2006 the Batman Civil Court of First Instance decided to discontinue the proceedings as the applicants had not paid the court fees.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
13.  Article 465 of the Code of Civil Procedure (CCP), Law no. 1086, in force at the time, states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her case.
14.  According to Article 468 of the CCP, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a statement of his or her means, another certificate indicating whether or not the individual owns any property and proof of how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities.
15.  Article 469 of the CCP provides that decisions regarding legal aid are final and cannot be appealed against.
16.  In December 2006, the minimum wage in force was TRY 322, 43 (approximately EUR 173) a month.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
17.  The applicants complained that the refusal to grant them legal aid in connection with their compensation case had infringed their right to a fair hearing guaranteed by Article 6 § 1 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 ...”
18.  The Government contested that argument.
A.  Admissibility
19.  In their observations, the Government submitted that the applicants did not exhaust domestic remedies and argued that they could have appealed against the domestic court’s decision. The Court observes that the applicants requested legal aid as they did not have means to pay the court fees. When their request was rejected, they could not pay the court fees which led to the domestic court’s decision not to continue with proceedings. Since decisions regarding legal aid are final and cannot be appealed against pursuant to Article 469 of the Code of Civil Procedure the applicant cannot be expected to appeal against the domestic decision. The Court therefore rejects the Government’s objection.
20.  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
21.  The applicants argued that by refusing their legal aid request, the civil court of first instance had breached their right of access to a court. In their view, according to the investigation ordered by the trial court concerning their financial means, their indigence was clearly established and irrefutable.
22.  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 published in the Official Gazette. The second type was calculated on the basis of the value of the litigation and varied in each case. The Government 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 submitted that the refusal of the legal aid request was not based on the financial situation of the applicants. In this respect, the Government stated that when lodging their compensation case with the domestic court, the applicants had failed to submit relevant documents concerning their indigence.
23.  The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so for the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is crucial 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).
24.  In the present case, the Court must therefore determine whether the requirement to pay the court fees imposed on the applicants constituted a restriction in breach of their right of access to a court.
25.  The Court observes that the first applicant is the father of the deceased and the remaining nine applicants are his family (the mother and siblings of the deceased). It is clear from the certificates delivered by the domestic authorities that the applicants had no income and were in a poor financial situation. This is not disputed by the Government. Nevertheless, the legal aid request was rejected, because the trial court decided that the first applicant was young enough to work in order to pay the court fees.
26.  The court fees that the applicants were required to pay amounted to approximately EUR 115 while the monthly minimum wage was approximately TRY 173 at the time. 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 grounds, inter alia, that the legal aid system in Turkey fails to offer individuals substantial guarantees to protect them from arbitrariness (see, in particular, Bakan v. Turkey, no. 50939/99, §§ 74-78, 12 June 2007; Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 31-39, 17 July 2007; and Eyüp Kaya v. Turkey, no. 17582/04, §§ 22‑26, 23 September 2008). It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned cases. In this respect, the Court would once again recall that pursuant to Article 469 of the CCP, decisions regarding legal aid are final and are delivered on the basis of the case file, without hearing the applicants (Bakan, cited above, § 76). The Court further observes that the refusal of the applicants’ legal aid request deprived them of the possibility of submitting their case before a tribunal. Finally, it also notes that the compensation case lodged following the death of A.O. was significant for the applicants’ personal situation and welfare.
27.  In view of the foregoing, the Court concludes that in the instant case there has been a disproportionate restriction on the applicants’ right of access to a court. There has accordingly been a violation of Article 6 § 1 in that respect.
II.  ALLEGED VIOLATION OF ARTICLES 2 AND 14 OF THE CONVENTION
28.  The applicants complained of the suffering which they have endured because of their loss, as a result of the lack of compensation. In this respect, they relied on Articles 2 and 14 of the Convention.
29.  The Court further notes that the main Convention question raised in the instant application was the applicants’ right of access to a court, pursuant to Article 6 § 1 of the Convention. Having found a violation of this provision (paragraphs 21-27 above), the Court considers that there is no need to make a separate ruling on the applicants’ other complaints (see, Mehmet and Suna Yiğit, cited above, §§ 40-43).
III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12
30.  The applicants alleged that there had been a violation of Article 1 of Protocol 12 as they were discriminated against on account of their economic situation.
31.  The Court notes that Turkey is not a Party to Protocol No. 12 to the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damage
32.  The applicants claimed a total of EUR 50,000 in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage.
33.  The Government, considering the requested amounts excessive, contested these claims.
34.  As regards pecuniary damage, the Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicants, as far as possible, are put in the position in which they 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 Batman Civil Court of First Instance’s decision dated 29 December 2006 (paragraph 12 above) and restart the proceedings, in accordance with the requirements of Article 6 § 1 of the Convention, should the applicants so request.
35.  As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants a total of EUR 3,000 under this head.
B.  Costs and expenses
36.  The applicants’ representative claimed TRY 20,470 for costs and expenses incurred before the domestic courts and the Court. The applicants’ representative relied on the Batman Bar Association’s list of recommended minimum fees and requested lawyer’s fee for the number of hours (60) spent by the lawyer on their case.
37.  The Government contested this claim.
38.  According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. As regards the lawyer’s fee, the Court reiterates that time sheets have been accepted in the past as supporting documents in a number of cases (see, Ertuş v. Turkey, no. 37871/08, § 41, 5 November 2013). It accordingly considers it reasonable to award the sum of EUR 1,500 for the lawyer’s fee.
C.  Default interest
39.  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,
1.  Declares the complaint under Article 1 of Protocol No.12 inadmissible
and the remainder of the application admissible;

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

3.  Holds that there is no need to examine separately the applicants’ other complaints under Articles 2 and 14 of the Convention.

4.  Holds
(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement and free of any taxes or charges that may be payable;
(i)  EUR 3,000 (three thousand euros) in respect of non‑pecuniary damage;
(ii)  EUR 1,500 (one thousand and five 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;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Abel Campos	András Sajó
	Deputy Registrar	President