SECOND SECTION
\nCASE OF GED\u0130KL\u0130 v. TURKEY
\n(Application no. 42413\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Gedikli v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Julia Laffranque, President, Having deliberated in private on 19 December 2017,<\/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. 42413\/09) 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\u00a0Selviye\u00a0Gedikli (\u201cthe applicant\u201d), on 20 July 2009.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 23 January 2017 the complaints raised under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, concerning the inability of the applicant to enforce a judgment rendered in her favour was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After 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 1957 and lives in Kocaeli.<\/p>\n 6.\u00a0\u00a0Following a dispute with a private third party, the applicant initiated compensation proceedings.<\/p>\n 7.\u00a0\u00a0On 12 March 2009 the Tuzla Civil Court of General Jurisdiction granted the applicant compensation, amounting to 386,464.75 Turkish liras (TRY) (approximately 174,000 euros (EUR)). In the operative part of the judgment, the court indicated that the defendant party had to pay TRY\u00a016,000 (approximately EUR 7,400) for court fees pursuant to the Law on Charges. The court registry accordingly sent a payment order to the defendant party. However, no payment was made.<\/p>\n 8.\u00a0\u00a0On 18 May 2009 the applicant submitted a petition to the registry of the first instance court, requesting that the judgment be served on her in order to commence enforcement proceedings.On the same day, the court rejected the request on the ground that it was impossible under Section\u00a028(1)\u00a0(a) of the Law on Charges (Law no. 492) to serve a copy of the judgment unless the court costs that should have been born by the defendant party had been discharged.<\/p>\n 9.\u00a0\u00a0At the time when the application was introduced, the applicant had therefore been unable to bring enforcement proceedings in order to have the above-mentioned judgment executed unless she herself was willing to pay the court fees that the defendant party had failed to pay.<\/p>\n 10.\u00a0\u00a0Following the introduction of the present application with the Court, the domestic legislation was amended (see paragraphs11-13below), and subsequently the judgment in question was served on the applicant. In the absence of an appeal, the judgment became final on 17 October 2012. On 5\u00a0March 2013 the applicant initiated enforcement proceedings against her debtor. On 10 April 2013 the applicant further requested the enforcement office to place a lien on the debtor\u2019s property. According to the documents in the file, as of 14 April 2017 the debt, which is still not enforced, amounts to TRY\u00a0812,648.94 (approximately EUR\u00a0193,500) including the initial amount of compensation awarded by the domestic court plus interest running at statutory rate.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 11.\u00a0\u00a0At the time of the events, section 28(1) (a) of the Law on Fees read:<\/p>\n \u201cSection 28(1) \u2013 Time-limit for the payment of fees<\/p>\n The proportional fees set out in scale no. 1 shall be paid within the following periods:<\/p>\n (a) One quarter of the fees for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment\u2019s delivery … The writ shall not be served on the party concerned unless the [court] fees for the judgment and the writ of execution are paid …\u201d<\/p>\n 12.\u00a0\u00a0In a decision dated 14 January 2010, the Constitutional Court repealed the provision in the second sentence of section 28(1) (a). The court indicated that to put the burden of paying the court fees on the party whose case had been accepted and who had been held exempt from those very fees by the first-instance court\u2019s judgment was incompatible with the right of access to court and, in particular, with the right to have a judgment executed. In this respect, the higher court pointed out that the repealed provision referred to proportional fees, which were calculated on the basis of the main amount at issue.<\/p>\n 13.\u00a0\u00a0Subsequently, in July 2010 section 28(1) (a) was amended. Following that change, the second sentence reads as follows:<\/p>\n \u201c… Failure to pay the court fees for the judgment and the writ of execution would not prevent the execution of the judgment, its service on the parties or the parties\u2019 right to have recourse to appeal proceedings.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0PRELIMINARY OBJECTIONS<\/p>\n 14.\u00a0\u00a0The Government argued that the applicant\u2019s complaint concerning the non-enforcement of the judgment delivered in her favour should be rejected. In this connection, they pointed out that following the decision of the Constitutional Court, which repealed the provision in the second sentence of section 28(1) (a) of Law on Fees, in July 2010 the legislation was amended and the applicant had thus the possibility of obtaining the execution of the impugned judgment. Based on these amendments in domestic law, the Government have asked the Court to declare the application inadmissible on the ground of abuse of the right of petition and incompatibility ratione personae.<\/p>\n 15.\u00a0\u00a0The Court recalls at the outset that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v.\u00a0Turkey [GC], 16 September 1996, \u00a7\u00a7 53-54, Reports of Judgments and Decisions 1996\u2011IV). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see H\u00fcttner v.\u00a0Germany (dec.), no. 23130\/04, 9 June 2006; Predescu v. Romania, no.\u00a021447\/03, \u00a7\u00a7 25-26, 2 December 2008; and Kowal v. Poland (dec.), no.\u00a02912\/11, 18 September 2012). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 \u00a7 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant\u2019s intention to mislead the Court must always be established with sufficient certainty (see Al-Nashif v.\u00a0Bulgaria, no. 50963\/99, \u00a7 9, 20 June 2002; Melnik v. Ukraine, no.\u00a072286\/01, \u00a7\u00a7 58-60, 28 March 2006; Nold v. Germany, no. 27250\/02, \u00a7\u00a087, 29 June 2006).<\/p>\n 16.\u00a0\u00a0The Court notes that the impugned domestic court judgment was delivered by the first instance court in March 2009, and the present application was lodged with the Court on 20 July 2009, namely before the amendments in domestic law. Between March 2009 and July 2010, that is to say for approximately sixteen months, the applicant had been unable to enforce the judgment in her favour owing to the domestic court\u2019s refusal to provide her with a copy of the said judgment (see Sevg\u00fclAlt\u0131parmak v.\u00a0Turkey, no. 27023\/06, \u00a7 25, 20 July 2010).<\/p>\n 17.\u00a0\u00a0In view of the foregoing, the Court considers that the applicant cannot be considered to have abused the right of petition and moreover she can still continue to be considered as a victim of the alleged breach. Accordingly, the Court dismisses the Government\u2019s preliminary objections.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained under Article 6 of the Convention that she had been unable to enforce the judgment in her favour owing to the domestic court\u2019s refusal to provide her with a copy of the said judgment.<\/p>\n 19.\u00a0\u00a0The Government contested that argument.<\/p>\n 20.\u00a0\u00a0The Court notes that this complaint 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 21.\u00a0\u00a0The Court reiterates that Article 6 \u00a7 1 of the Convention secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal; in this way it embodies the \u201cright to a court\u201d, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State\u2019s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the \u201ctrial\u201d for the purposes of Article\u00a06 \u00a7 1 (see Hornsby v. Greece, 19 March 1997, \u00a7 40, Reports 1997-II, and \u00dclger v. Turkey, no. 25321\/02, \u00a7 38, 26June 2007).<\/p>\n 22.\u00a0\u00a0In so far as enforcement proceedings constitute an integral part of the trial, the Court considers that the right to a court, along with access to first-instance and appeal courts for the determination of \u201ccivil rights and obligations\u201d (see Kreuz v. Poland, no. 28249\/95, \u00a7\u00a7 53-54, ECHR 2001\u2011VI), equally protects the right of access to enforcement proceedings (see \u00dclger, cited above, \u00a7 39).<\/p>\n 23.\u00a0\u00a0In the present case, the applicant was awarded compensation by the judgment of the Tuzla Civil Court of First Instance. However, she could not secure the enforcement of that judgment as the required court fees, which the domestic court had imposed on the defendant party, were not paid.<\/p>\n 24.\u00a0\u00a0In this connection, the Court reiterates that the right to access to a court is not absolute but may be subject to limitations; these are permitted by implication, since the right of access by its very nature calls for regulation by the State. However, the Court must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article\u00a06 \u00a7\u00a01 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Apostol v. Georgia, no. 40765\/02, \u00a7 57, ECHR\u00a02006\u2011XIV, and \u00dclger, cited above, \u00a7 41).<\/p>\n 25.\u00a0\u00a0The Court further reiterates that, in order to determine whether or not a person enjoyed the right of access, the amount of the fees requested must be assessed in the light of the particular circumstances of a given case, including the applicant\u2019s ability to pay them, and the phase of the proceedings at which that restriction has been imposed (see Apostol, cited above, \u00a7 59).<\/p>\n 26.\u00a0\u00a0The Court notes that, by invoking section 28(1)(a) of the Law on Fees, the domestic court imposed on the applicant a financial obligation, failure to comply with which barred her access to the judgment concerning her compensation claims and thus to the further enforcement proceedings. Accordingly, that obligation, which should have been borne by the other party and which was imposed on the applicant at the enforcement stage, constituted a restriction of a purely financial nature and therefore calls for particularly rigorous scrutiny from the point of view of the interests of justice (see Apostol, cited above, \u00a7 60, and Osman Y\u0131lmaz v. Turkey, no.\u00a018896\/05, \u00a7 41, 8 December 2009). In this connection, the Court takes account of the Constitutional Court\u2019s decision dated 14 January 2010, which repealed the provision in the second sentence of section 28(1)(a). It notes that the higher court found the said provision incompatible with the right of access to court, as it imposed the obligation to pay the court fees on the party whose case had been accepted and who was not legally liable for such fees pursuant to the judgment.<\/p>\n 27.\u00a0\u00a0Moreover, the Court reiterates that the fulfillment of the obligation to secure effective rights under Article 6 \u00a7 1 of the Convention does not only mean the absence of interference but may also require positive action on the part of the State (see Kreuz, cited above, \u00a7 59). It considers that by shifting to the applicant the full responsibility to meet the court costs, the State avoided its positive obligation to organise a system for the enforcement of judgments which is effective both in law and in practice (see Fuklev v. Ukraine, no. 71186\/01, \u00a7 84, 7 June 2005, and Osman Y\u0131lmaz, cited above, \u00a7 42). Thus, some consideration should also have been given in the present case to the reasonable relationship of proportionality between the payment of the court costs and the work required for the task in hand, namely merely providing the applicant with a copy of the judgment.<\/p>\n 28.\u00a0\u00a0Accordingly, the Court finds that holding the applicant responsible for payment of the charges before she could receive a copy of the judgment imposed an excessive burden on her and restricted her right of access to a court to such an extent as to impair the very essence of that right.<\/p>\n 29.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 30.\u00a0\u00a0The applicant further alleged under Article 1 of Protocol No. 1 to the Convention that the non\u2011enforcement of the judgment had violated her right to peaceful enjoyment of possessions.<\/p>\n 31.\u00a0\u00a0The Government contested the claim.<\/p>\n 32.\u00a0\u00a0The Court notes that this complaint 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 33.\u00a0\u00a0The Court reiterates that a \u201cclaim\u201d may constitute a \u201cpossession\u201d within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established so as to be enforceable (see Burdov v. Russia, no. 59498\/00,\u00a7\u00a040, ECHR 2002\u2011III). Thus, the judgment delivered by the Tuzla Civil Court of General Jurisdiction in the compensation proceedings brought by the applicant provided her with an enforceable claim.<\/p>\n 34.\u00a0\u00a0It follows that the impossibility for the applicant to have the judgment enforced constituted an interference with her right to the peaceful enjoyment of her possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see \u00dclger, cited above, \u00a7\u00a7\u00a049-50, and \u00c7ak\u0131r and Others v. Turkey, no. 25747\/09, \u00a7\u00a7 24-26, 4 June 2013).<\/p>\n 35.\u00a0\u00a0In the absence of any justification for that interference, the Court concludes that there has also been a violation of Article 1 of Protocol No. 1.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 36.\u00a0\u00a0The applicant claimed EUR\u00a0750,000 in respect of pecuniary and EUR\u00a0500,000 in respect of non-pecuniary damage.<\/p>\n 37.\u00a0\u00a0The Government contested the claims.<\/p>\n 38.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR\u00a01,000 in respect of B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 39.\u00a0\u00a0Without submitting any evidence in support of her claims, the applicant also claimed a total of EUR\u00a03,295 for the costs and expenses incurred before the Court.<\/p>\n 40.\u00a0\u00a0The Government contested the claim.<\/p>\n 41.\u00a0\u00a0The Court reiterates that according to Rule 60 \u00a7 2 of the Rules of Court, any claim for just satisfaction must be itemised and submitted together with the relevant supporting documents. In the instant case, the applicant did not submit any document to substantiate her claim for costs and expenses. In view of the applicant\u2019s failure to comply with the aforesaid requirement, the Court makes no award for costs and expenses.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsEUR\u00a01,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; to be converted into the currency of the respondent Stateat 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 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 16 January 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 Julia Laffranque
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nnon-pecuniary damage.<\/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\u00a0 President<\/p>\n