SECOND SECTION. CASE OF EŞİM v. TURKEY. (Application no /09) JUDGMENT STRASBOURG. 17 September 2013 FINAL 17/12/2013

Transcription

1 SECOND SECTION CASE OF EŞİM v. TURKEY (Application no /09) JUDGMENT STRASBOURG 17 September 2013 FINAL 17/12/2013 This judgment has become final under Article 44 2 of the Convention. It may be subject to editorial revision.

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3 EŞİM v. TURKEY JUDGMENT 1 In the case of Eşim v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić, Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 27 August 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no /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 ( the Convention ) by a Turkish national, Mr Uğur Eşim ( the applicant ), on 22 October The applicant was represented by Mr O. Doğan, a lawyer practising in Ankara. The Turkish Government ( the Government ) were represented by their Agent. 3. On 11 June 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1969 and lives in İstanbul. 5. On 25 September 1990, when the applicant was a conscript in the army, a clash broke out between the security forces and a group of terrorists. During the incident the applicant was severely wounded by gunshots. Subsequently, he was treated in different military hospitals. According to a medical report, dated 14 November 1991, the applicant s work capability had been reduced by 33%. Consequently, on 2 April 1992 he was declared

4 2 EŞİM v. TURKEY JUDGMENT to be suffering from a permanent disability and discharged from the army. He was also awarded a sixth-degree disability pension. 6. In the following years the applicant started suffering from persistent headaches and dizziness, and had sleeping problems. In 2004 a CT scan revealed an unidentified metallic object in the left orbital area. Subsequently, in 2007, the applicant was admitted to the neurosurgery department of the GATA Military Hospital and another CT scan revealed that he had a bullet in his head, measuring 15 x 10 mm. The doctors stated that removing the bullet was potentially life-threatening. 7. On 19 September 2007 the applicant applied to the Ministry of Defence for compensation in respect of his injury. He alleged that, on account of medical negligence, the bullet in his head had remained unnoticed and that he had sustained further pecuniary damage as this fact had not been taken into account in calculating his disability pension. 8. Following tacit dismissal of the claim by the administrative authorities, on 16 January 2008 the applicant instituted two separate actions in the Supreme Military Administrative Court, one for the pecuniary damage and the other for the non-pecuniary damage he had sustained on account of the bullet which had been found in his head in On 21 January and 18 February 2009 respectively the Supreme Military Administrative Court, by a majority, rejected both actions as being out of time. In both decisions the court held that notwithstanding the fact that the applicant had not been aware of the bullet in his head until 2007, pursuant to section 43(1) of the Supreme Military Administrative Court Act, his compensation claims should have been lodged within five years of the incident. 10. On 22 April 2009 the Supreme Military Administrative Court rejected a rectification request lodged by the applicant. Its decision was served on the applicant on 6 May II. RELEVANT DOMESTIC LAW AND PRACTICE A. Military Administrative Law 11. Section 43 of the Supreme Military Administrative Court Act (Law No of 4 July 1972) reads as follows: Anyone who considers him or herself to have suffered damage on account of a wrongful act of the administration must lodge an application for compensation with the relevant authority within a year of notification of the impugned act or from the date on which he or she learned of the impugned act and, in any event, within five years of the commission of that act. Should all or part of the claim be dismissed, or if no reply is received within sixty days, an application for judicial review may be lodged...

5 EŞİM v. TURKEY JUDGMENT 3 B. Civil administrative law 12. In many cases the Supreme Administrative Court has considered that the limitation period provided for in section 13 of the Administrative Procedure Act starts to run when the personal injury stabilises (see, amongst other authorities, Supreme Administrative Court, 17 April 2007, E. 2005/8152, K. 2007/2075). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 13. The applicant complained that he had been deprived of his right to a fair trial and effective access to a court on the ground that the Supreme Military Administrative Court had rejected his case as being out of time. In his application form, he relied on Articles 2, 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. 14. The Court considers that the application should be examined solely from the standpoint of Article 6, the relevant passages of which provide as follows: 1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing... by [a] tribunal. A. Admissibility 15. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 16. The applicant alleged that he had been deprived of his right to a fair trial and effective access to a court on the ground that the Supreme Military Administrative Court had rejected his compensation claim for being out of time. He alleged that the five-year time-limit as applied by the Supreme Military Administrative Court had operated so as to extinguish his right to bring an action before he was aware of the facts that had prompted him to institute proceedings.

6 4 EŞİM v. TURKEY JUDGMENT 17. The Government challenged that assertion. They maintained that the applicant s right of access to court had not been impaired because he had had one year to bring an action following the CT scan dated 22 July They argued that the principle of statutory limitation existed in all European legal systems and the purpose of that rule was to ensure legal certainty. 18. The Court reiterates at the outset that the right to a fair trial, guaranteed by Article 6 1 of the Convention, must be construed in the light of the rule of law, which requires an effective judicial remedy enabling [litigants] to assert their civil rights (see Běleš and Others v. the Czech Republic, no /99, 49, ECHR 2002-IX). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the right to a court, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, 36, Series A no. 18, and Prince Hans- Adam II of Liechtenstein v. Germany [GC], no /98, 43, ECHR 2001-VIII). 19. The right to a court is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see García Manibardo v. Spain, no /97, 36, ECHR 2000-II, and Mortier v. France, no /98, 33, 31 July 2001). However, these limitations must not restrict or reduce a person s access in such a way or to such an extent that the very essence of the right is impaired. Lastly, such limitations will not be compatible with Article 6 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim pursued (see Guérin v. France, 29 July 1998, 37, Reports of Judgments and Decisions 1998-V, and Stubbings and Others v. the United Kingdom, 22 October 1996, 50, Reports 1996 IV). 20. Furthermore, it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court s role is limited to verifying compatibility with the Convention of the effects of such an interpretation. This applies in particular to the interpretation by courts of rules of a procedural nature such as time-limits governing the lodging of appeals (see Tejedor García v. Spain, 16 December 1997, 31, Reports 1997-VIII). The rules governing the time-limits for appeals are intended to ensure a proper administration of justice. That being so, the rules in question, or their application, should not prevent litigants from using an available remedy. Furthermore, the Court must make its assessment in each case in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos /97, 38688/97,

7 EŞİM v. TURKEY JUDGMENT /98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, 36, ECHR 2000 I). 21. In accordance with those principles, while the right to bring an action is of course subject to statutory requirements, the courts are bound to apply the rules of procedure avoiding both excessive formalism that would impair the fairness of the proceedings and excessive flexibility such as would render nugatory the procedural requirements laid down in statutes (see Walchli v. France, no /03, 29, 26 July 2007). In fact, the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Efstathiou and Others v. Greece, no /02, 24, 27 July 2006). 22. In the instant case the Government argued that the applicant had learned about the bullet in his head in In that connection they referred to the CT scan of 22 July 2004, which indicated the existence of an unidentified object in the applicant s left orbital area. The Court notes, however, that in its decision of 21 January 2009 the Supreme Military Administrative Court made no reference to that medical report. In its decision, the court merely stated that the applicant should have brought his case within five years of the commission of the act and did not take into consideration the date on which the applicant had learned of the damage (see paragraph 9 above). As a result, whether the applicant had learned of the bullet in his head in 2004 or 2007 had no effect on the domestic court s conclusion, as it was concluded that the time-limit for instituting compensation proceedings had expired on 25 September The Court observes that what is at the heart of this case is in fact the domestic court s reasoning, according to which the five-year time-limit was calculated from the date on which the applicant had been wounded in In this connection the Court notes that it is undisputed between the parties that the bullet in the applicant s head had not been noticed when he was wounded and was discovered only after he developed severe headaches. 24. The Court further notes that although section 13 of the Administrative Procedure Act and section 43 of the Supreme Military Administrative Court Act are identical, in respect of personal injury cases the Supreme Administrative Court and the Supreme Military Administrative Court differ in their interpretation of the five-year time-limit. Referring to the case-law cited above (see paragraph 12), the Court notes that while the Supreme Administrative Court attaches importance to the date on which the victim becomes able to assess the consequences of the damage, the Supreme Military Administrative Court does not take into consideration the date on which the damage stabilises. 25. In the instant case the Court holds that it cannot be considered reasonable to expect the applicant to have lodged his compensation claim

8 6 EŞİM v. TURKEY JUDGMENT within five years, since it is undisputed that he was unaware of the bullet in his head on 25 September In the Court s view, in personal injury compensation cases, the right of action must be exercised when the litigants are actually able to assess the damage that they have suffered. Accordingly, as far as the Court is concerned, the applicant could not have submitted a compensation claim within five years of the incident, since the damage was determined only at a later date. 26. Consequently, in the present case, the Supreme Military Administrative Court s strict interpretation of the time-limit precluded a full examination of the merits of the case. Thus, by imposing a disproportionate burden on the applicant, the Supreme Military Administrative Court impaired the very essence of the applicant s right of access to a court (see Miragall Escolano and Others, cited above, 37). 27. In the circumstances of the present case, the Court considers that the applicant s right of access to a court has been breached and that there has therefore been a violation of Article 6 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. The applicant claimed 35,924 euros (EUR) in respect of pecuniary damage and EUR 17,000 for non-pecuniary damage. He further claimed EUR 14,263 for legal fees and EUR 1,331 for costs and expenses. In that connection he relied on the Ankara Bar Association s recommended fee scales. He did not however submit any other invoice or documents in support of his claim. 29. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 1 would have been. Accordingly, it considers that no award can be made to the applicant under this head. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 3,000 under this head. 30. The Court further 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 v. Turkey, no /99, 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 to quash or otherwise set aside the Military Supreme Administrative Court s decision of 22 April 2009 (see paragraph 9 above) and restart the proceedings, in accordance with the requirements of Article 6 1 of the Convention, should the applicant so request. 31. Lastly, as regards costs and expenses the Court reiterates that according to its case-law an applicant is entitled to the reimbursement of

9 EŞİM v. TURKEY JUDGMENT 7 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. In the present case the applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 1 of the Convention; 3. 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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of nonpecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that 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; 4. Dismisses the remainder of the applicant s claim for just satisfaction. Done in English, and notified in writing on 17 September 2013, pursuant to Rule 77 2 and 3 of the Rules of Court. Stanley Naismith Registrar Guido Raimondi President