SECOND SECTION
\nCASE OF DIRAMA v. TURKEY
\n(Application no. 20797\/07)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n13 November 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of D\u0131rama v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, Having deliberated in private on 16 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The 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 (\u201cthe Convention\u201d) by a Turkish national, Ms Nazl\u0131D\u0131rama (\u201cthe applicant\u201d), on 1 May 2007.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr H. Gen\u00e7 a lawyer practising in Aksaray. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 20 June 2017 the application was communicated to the Government.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. Having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1967 and lives in Mu\u011fla.<\/p>\n 6.\u00a0\u00a0On an unspecified date the applicant brought an enforcement order through a bailiff\u2019s office against her former husband, G.F., to collect alimony in arrears and accrued interest.<\/p>\n 7.\u00a0\u00a0On 9 March 2006 G.F. objected to that order by bringing a case against the applicant before the Dat\u00e7aEnforcement 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.<\/p>\n 8.\u00a0\u00a0In the first hearing G.F.\u2019s 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 toa hearing to be held on 10 May 2006.<\/p>\n 9.\u00a0\u00a0In that hearing, the applicant\u2019s representative left it to the court\u2019s 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.<\/p>\n 10.\u00a0\u00a0In the meantime, but before the hearing of 7 June 2006, the applicant\u2019s representative requested that he be excused from that hearing since he had another scheduled court hearing elsewhere.<\/p>\n 11.\u00a0\u00a0The court held the hearing as scheduled but noted that the applicant\u2019s 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.\u2019s 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 2006holding that the absent party be notified.<\/p>\n 12.\u00a0\u00a0On 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 herrepresentative was present at that hearing. There is no indication in the transcript of the hearing that suggests that the court examined whether the applicant\u2019s representative had been notified in due time.<\/p>\n 13.\u00a0\u00a0On31 July 2006 the applicant\u2019s 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\u2019s calculations had been erroneous and did not correspond to the bank transfer receipts in the case-file.<\/p>\n 14.\u00a0\u00a0On 5 December 2006 the Court of Cassation upheld the decision of 21\u00a0June 2006 without responding to the applicant\u2019s arguments.<\/p>\n 15.\u00a0\u00a0The applicant\u2019s rectification request against that decision was rejected on 13 March 2007.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 16.\u00a0\u00a0Therelevant provisions of the Code of Civil Procedure (Law\u00a0no.\u00a01086), which was in force at the time of the events, provided as follows:<\/p>\n Article 73<\/p>\n \u201cSave for the exceptions provided by law, the judge may not rule on the case unless both parties are duly invited to submit their observations.\u201d<\/p>\n Article 283<\/p>\n \u201cThe 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.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The 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 \u00a7 1 of the Convention, the relevant parts of which read as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by [a] … tribunal …\u201d<\/p>\n 18.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 19.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) 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<\/strong><\/p>\n 20.\u00a0\u00a0The applicant maintained her arguments.<\/p>\n 21.\u00a0\u00a0The 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\u00a0May 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\u2019s account and not any other fact that was not previously disclosed to the applicant. It could not therefore be said that it required applicant\u2019s 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.<\/p>\n 22.\u00a0\u00a0The 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-\u00e0-vis his or her opponent (see DomboBeheer B.V. v.\u00a0the\u00a0Netherlands, 27 October 1993, \u00a7 33, Series A no. 274, and Avoti\u0146\u0161 v.\u00a0Latvia [GC], no. 17502\/07, \u00a7 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\u2019 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, \u00a7\u00a7\u00a017-18, 6 February 2001).<\/p>\n 23.\u00a0\u00a0Article 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.\u00a059927\/08, \u00a7 37, 24 January 2017). Nor are the domestic authorities required to provide a perfectly functioning postal system (see Zagorodnikov v. Russia, no. 66941\/01, \u00a7 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 \u00a7 1 (see Nikoghosyan and Melkonyan v. Armenia, nos. 11724\/04 and 13350\/04, \u00a7 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, \u00a7\u00a026, 24\u00a0January 2017 and the cases cited therein).<\/p>\n 24.\u00a0\u00a0In 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\u2019s 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\u2019s 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\u2019s 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\u2019s registry since her acknowledgement of its receipt was marked on the minutes of the hearing of 10\u00a0May 2006 which is a date predating the court\u2019s 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\u2019s 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.<\/p>\n 25.\u00a0\u00a0The foregoing considerations are sufficient to conclude that there was an infringement of the applicant\u2019s right to a fair hearing enshrined in Article 6 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 26.\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 27.\u00a0\u00a0The applicantclaimed 50,000\u00a0euros\u00a0(EUR) in respect of non\u2011pecuniary damage and EUR\u00a010,000 for costs and expenses.<\/p>\n 28.\u00a0\u00a0The Government submitted that the applicant\u2019s claims were unsubstantiated and in any event excessive.<\/p>\n 29.\u00a0\u00a0The Court considers that the finding of a violation of Article 6 \u00a7 1 constitutes in itself sufficient just satisfaction in respect of any non\u2011pecuniary 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\u2019s claims in respect of costs and expenses.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/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 that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;<\/p>\n 4.\u00a0\u00a0Dismissesthe applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 13 November 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\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 LediBianku
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\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