SECOND SECTION
\nCASE OF M\u0130KA\u0130L T\u00dcZ\u00dcN v. TURKEY
\n(Application no. 42507\/06)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 November 2018<\/p>\n
FINAL
\n27\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of MikailT\u00fcz\u00fcn v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 6 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 42507\/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr MikailT\u00fcz\u00fcn (\u201cthe applicant\u201d), on 17 October 2006.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr S.S. Acar and Mr S. Uz, lawyers practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant complainedthatit had been impossible for him to modify the amount of his claim in the light of the compensation amount established in an expert report submitted to the administrative court. He also complained aboutthe length of those proceedings.<\/p>\n 4.\u00a0\u00a0In a decision of 8 April 2014, the Court declared the applicant\u2019s complaint regarding the length of proceedings inadmissible on account of a new remedy offered by Law no. 6384 and adjourned the examination of the remainder of the application.<\/p>\n 5.\u00a0\u00a0On 26 June 2017the Government were given notice of the applicant\u2019s remaining complaint.<\/p>\n THE FACTS<\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1960 and lives in Istanbul.<\/p>\n 7.\u00a0\u00a0On 11 December 1995 the applicant, a traffic control officer,was hit by a car whileon duty. He suffered bodily injuries as a result of the accident. An official disability report indicated that he had a reduced working capacityof 60%.<\/p>\n 8.\u00a0\u00a0On the basis of this report the applicant, while reserving the right to increase his claims in due course, made an initial request for compensation to the Ministry of Interior, claiming 20,000 Turkish liras\u00a0(TRY) in pecuniary damages and TRY 5,000 in non-pecuniary damages.<\/p>\n 9.\u00a0\u00a0Following tacit dismissal of the claim by the Ministry, the applicant brought a case for compensation before the Istanbul Administrative Court for the amounts he had specified in his request to the Ministry.<\/p>\n 10.\u00a0\u00a0During the course of the proceedings, the court decided of its own motion to order an expert report to determine the exact amount of pecuniary damage suffered by the applicant.The report, which was submitted to the court on 26 September 2005, indicated the applicant\u2019s pecuniary damages as 157,077 TRY. The applicant did not submit a request to the court to increase his initial claims in the light of that report.The Istanbul Administrative Court in its decision delivered on 15 February 2006 only awarded him the amounts initially requested by him.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 11.\u00a0\u00a0At the time of the events, Turkish administrative law did not allow claimantsto amend their initial claims during the course of proceedings before the administrative courts (see, in particular, Ok\u00e7u v.\u00a0Turkey, no.\u00a039515\/03, \u00a7\u00a7 27-32, 21 July 2009).<\/p>\n 12.\u00a0\u00a0Since 30 April 2013, as a result of an amendment to the Code of Administrative Procedure, parties in fullremedy actions have been able to revise their initial claims,provided that the related costs are paid.<\/p>\n THE LAW<\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 13.\u00a0\u00a0The applicant complained of the absence of a remedythat would have allowed him to claim the entire compensation amount determined by the expert during the course of the domestic proceedings. The Court considers that the complaint concerns the applicant\u2019s right of access to a court guaranteed by Article 6 \u00a7 1 of the Convention, the relevant parts of which provide as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 14.\u00a0\u00a0The Government contested theapplicant\u2019s arguments.<\/p>\n A.\u00a0\u00a0Admissibility<\/p>\n 15.\u00a0\u00a0The Government invited the Court to reject the application for non\u2011exhaustion of domestic remedies. They submitted that the applicant had neither explicitlyreserved his right to increase his initial claim in the course of the proceedings when he had lodged his claim with the Istanbul Administrative Court nor subsequently requested that the court give a decision concerning the additional amount as set out in the expert report in question.<\/p>\n 16.\u00a0\u00a0The applicant argued that the relevant domestic law at the material time had precluded him from amending his claim or bringing an additional administrative action before the courts on the basis of an expert report provided in the proceedings.<\/p>\n 17.\u00a0\u00a0The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant\u2019s complaints and offered reasonable prospects of success (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, \u00a7 68, Reports of Judgments and Decisions 1996\u2011IV).In that connection, the Court refersto its finding made in the context of a complaint under Article 13 of the Convention, that in the context of Turkish administrative law as in force at the material time there were no domestic remedies whereby claimants could increase the initial amount of their claims in the course of the proceedings (see Ok\u00e7u v.\u00a0Turkey, no 39515\/03, \u00a7\u00a7 27-32 and 64, 21 July 2009). The Court sees no reason to depart from that finding in the present case and thereforeconsiders that the applicant\u2019s complaint cannot be rejected for failure to exhaust domestic remedies.<\/p>\n 18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/p>\n 19.\u00a0\u00a0The applicant maintained his arguments.<\/p>\n 20.\u00a0\u00a0The Government left it to the Court\u2019s discretion to assess the merits of the applicant\u2019s complaint and submitted that the legislation in question, which had prevented claimants from modifying their initial claims before the administrative courts, had been amended on 30 April\u00a02013 (see paragraph 12 above).<\/p>\n 21.\u00a0\u00a0While the Court welcomes the amendments to the relevant domestic law, it notes that the previous legislation and practice was applicable to the applicant\u2019s case. The amendments do not therefore affect the applicant\u2019s situation.<\/p>\n 22.\u00a0\u00a0As regards the merits, the Court notes that it is not disputed between the parties thatthe true extent of the applicant\u2019s pecuniary damage was only brought to light during the course of the proceedings by an expert report which was orderedby the relevantcourt of its own motion. It is also not disputed that the only reason why the applicant was unable to increase his initial claim in the light of the expert report in question was the statutory obstacle in administrative court procedure.<\/p>\n 23.\u00a0\u00a0In the case of Fatma Nur Erten and Adnan Erten v.\u00a0Turkey (no.\u00a014674\/11, \u00a7\u00a7 29-33, 25 November 2014), the Court found a violation of Article 6 \u00a7 1 of the Convention in respect of a similar set of circumstancesrelating to the same procedural restriction in the Code of Supreme Military Administrative Court (Law no. 1602). Having noted that the only reason why claimants could not modify their claims was because of the strict application of the procedural rule, the Court took the view that it would be unreasonable to expect the applicant to have known the exact extent of his pecuniary damage at the time of lodging his case with the military administrative court or to require him to overestimate his claim deliberately and lodge a case for a higher amount by paying higher court fees which would result in a disproportionate limitation on the right of access to court (see, as a recent example, Tamer Tanr\u0131kulu v.\u00a0Turkey, no.\u00a036488\/08, 29 November 2016).<\/p>\n 24.\u00a0\u00a0The Court finds that the same considerations are applicable to the instant case and sees no reason to hold otherwise.<\/p>\n There has accordingly been a violation of Article 6 \u00a7\u00a01 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 26.\u00a0\u00a0The applicant claimed TRY\u00a0906,848 (approximately 188,573\u00a0euros (EUR)) in respect of pecuniary damage and TRY\u00a0235,000 (approximately EUR\u00a048,860) in respect of non-pecuniary damage. He further claimed TRY\u00a0243,542 (approximately\u00a0EUR\u00a050,640) for legal fees, but did not submit an invoice or any other documents in support of that claim.<\/p>\n 27.\u00a0\u00a0The Government submitted that the applicant\u2019s just satisfaction claims and claims for legal fees were excessive and unfounded.<\/p>\n 28.\u00a0\u00a0As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article\u00a06\u00a0\u00a7\u00a01 would have been.<\/p>\n 29.\u00a0\u00a0The Court reiterates that the most appropriate form of redress for a violation of Article 6 \u00a7 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, for example, Mehmet and SunaYi\u011fitv.\u00a0Turkey, no. 52658\/99, \u00a7 47, 17 July 2007). 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 the reopening of the proceedings, to be held in accordance with the requirements of Article 6\u00a0\u00a7\u00a01 of the Convention, should the applicant so request. On the other hand, the Court considers that the applicant must have suffered distress and frustration in view of the violation found. It therefore awards him EUR\u00a02,500 on account of non-pecuniary damage.<\/p>\n 30.\u00a0\u00a0As regards costs and expenses the Court reiterates that, according to its 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 are reasonable as to quantum (see, among other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no.\u00a076943\/11, \u00a7 187, 29 November 2016). In the present case, the applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR\u00a02,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of non\u2011pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 27 November\u00a02018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano
\nPaul Lemmens,
\nLedi Bianku,
\nI\u015f\u0131lKaraka\u015f,
\nJulia Laffranque,
\nValeriuGri\u0163co,
\nJon FridrikKj\u00f8lbro, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n