CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 25 juin 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6C3B0BAF { margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7714A00D { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify } .s8A814743 { margin-top:36pt; margin-bottom:18pt; page-break-inside:avoid; page-break-after:avoid } .s5BFCBFA6 { width:151.6pt; display:inline-block } .s5B081A9D { width:168.28pt; display:inline-block } .s388EDDE1 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }   SECOND SECTION DECISION Application no. 42415/09 TÜRKOĞLU DEMİR SAN. VE TİC. LTD. ŞTİ. and Others against Turkey The European Court of Human Rights (Second Section), sitting on 25   June 2013 as a Committee composed of: Peer Lorenzen, President, András Sajó, Nebojša Vučinić, judges, and Françoise Elens-Passos, Acting Deputy Section Registrar, Having regard to the above application lodged on 28 July 2009, Having deliberated, decides as follows: THE FACTS The applicants, whose names appear in the appendix, are represented before the Court by Mr M. Keskin, a lawyer, practising in Ankara. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 19 February 1998 the first applicant signed up a loan agreement with Garanti Bank (hereinafter referred to as the “Bank”). The remaining applicants signed the agreement as guarantors. On an unspecified date the Bank initiated enforcement proceedings against the applicants for breach of contract. On 21 November 2002 the applicants counter claimed against the Bank before the Ankara Commercial Court to have the annulment of the enforcement proceedings. Based on the value of their claim amounting 184,500 Turkish liras (TRY) (approximately 116,772 euros (EUR)), the applicants calculated and paid the required court fee. At the hearing held on 9 May 2007 the Ankara Commercial Court decided that the amount of the applicants’ claim was higher and requested the applicants to pay the remainder court fee within twenty days to be able to continue the proceedings. On 30 April 2007, indicating that they were unable to pay the amount in question, the applicants requested legal aid for the court fees. In doing so, the applicants did not submit any relevant document attesting to their financial capacity. On 9 May 2007 the Ankara Commercial Court refused to grant legal aid to the applicants and they were requested to pay the due fees within ten days to be able to continue the proceedings. They were warned that failure to do so would result in the abrogation ( işlemden kaldırma ) of the proceedings. On 14 May 2007 the applicants requested permission from the Ankara Commercial Court to pay the due amount in instalments. On 21 May 2007 the court refused this request and abrogated the proceedings. On 26 September 2007 the Ankara Commercial Court decided to discontinue the proceedings because the applicants had not paid the necessary court fees. On 22 April 2009 the Court of Cassation upheld the decision. According to the information in the case file, the applicants requested the rectification of this decision. The proceedings are still pending before the Court of Cassation. B.     Relevant domestic law Article 465 of the Code of Civil Procedure states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her request. According to Article 468 of the Code of Civil Procedure, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a certificate attesting to his/her indigence; another certificate indicating whether or not the individual owns any property and an attestation regarding how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities. Article 469 of the Code of Civil Procedure provides that decisions regarding legal aid are binding. COMPLAINT The applicants complained under Article 6 of the Convention that they had been denied access to a court on account of the Ankara Commercial Court’s refusal to grant them legal aid to pay the court fees. THE LAW Invoking Article 6 of the Convention, the applicants complained that they had been denied access to a court. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central 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). The right of access to court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention’s requirements rests with the Court (see Kreuz v. Poland , no. 28249/95, § 53, ECHR 2001-VI, and Mehmet and Suna Yiğit v. Turkey , no. 52658/99, § 33, 17 July 2007). The institution of a legal aid scheme constitutes one of those means. It may therefore be acceptable to impose conditions on the granting of legal aid on the basis, inter alia , of the financial situation of the litigant or his or her prospects of success in the proceedings (see Steel and Morris , cited above, §§ 60-62, and Wieczorek v. Poland , no. 18176/05, § 37, 8 December 2009). The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia , upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively (see Alkan v. Turkey , no. 17725/07, § 24, 7 February 2012; Serap Demirci v. Turkey , no. 316/07, § 25, 10 January 2012, and Kaba v.   Turkey , no. 1236/05, § 20, 1 March 2011). 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 court. The Court firstly notes that in the instant case the provisions of the Code of Civil Procedure made it possible for the applicants to apply for legal aid. When examining whether the decisions on legal aid, seen as a whole, were in compliance with the fair hearing standards of the Convention, it is not the Court’s task to take the place of the Turkish courts, but rather to review whether those courts, when exercising their power of appreciation in respect of the assessment of evidence, acted in accordance with Article 6 § 1 (see, mutatis mutandis, Kreuz v. Poland , cited above, § 64). The Court notes that the applicants had paid the court fees when they initiated the proceedings against the Bank. Subsequently in 2007, the trial court recalculated the amount of the fees and decided that an additional payment was necessary as the amount of dispute was higher than as initially indicated by the applicants. The Court further notes that Article 468 of the Code of Civil Procedure requires when applying for legal aid that the applicants should submit a certificate attesting to their indigence and other certificates indicating whether or not they owned any property and an attestation regarding how much, if any, tax they had paid. In the present case, the Court observes that the applicants failed to submit any supporting documents in favour of their legal aid claim. The Court further notes that there appears to be no arbitrariness on the part of the domestic courts in refusing the applicants’ legal aid claim. The Court, thus finds that the applicants’ application is manifestly ill ‑ founded in accordance with article 35 § 3 (a) of the Convention and must hence be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Françoise Elens-Passos   Peer Lorenzen Acting Deputy Registrar   President APPENDIX   1.     TÜRKOĞLU DEMİR SAN. VE TİC. LTD. ŞTİ. is a limited company registered in Turkey. 2.     ÇELİKSAN ÇELİK SAN. VE TİC. LTD. ŞTİ. is a limited company registered in Turkey. 3.     FATİH PRES SAN. VE TİC. LTD. ŞTİ. is a limited company registered in Turkey. 4.     Nazmiye TÜRKOĞLU is a Turkish national, who was born in 1959, lives in Ankara. 5.     Arif TÜRKOĞLU is a Turkish national, who was born in 1952, lives in Ankara. 6.     Hacı Hüseyin TÜRKOĞLU is a Turkish national, who was born in 1949, lives in Ankara. 7.     Ali TÜRKOĞLU is a Turkish national, who was born in 1959, lives in Ankara. 8.     Etnan TÜRKOĞLU is a Turkish national, who was born in 1954, lives in Ankara. 9.     UFUK GAZ SAN. VE TİC. LTD. ŞTİ. is a limited company registered in Turkey.