CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 29 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sDCD104B3 { width:11.97pt; display:inline-block } .sD0139147 { width:190pt; display:inline-block } .sA1981C75 { width:4.63pt; display:inline-block } .s6196896C { width:200.33pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       SECOND SECTION             CASE OF TAMER TANRIKULU v. TURKEY   (Application no. 36488/08)             JUDGMENT           STRASBOURG   29 November 2016           This judgment is final but it may be subject to editorial revision. In the case of Tamer Tanrıkulu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Nebojša Vučinić, President,   Valeriu Griţco,   Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 8 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36488/08) 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. Tamer Tanrıkulu (“the applicant”), on 29 July 2008. 2.     The applicant was represented by Mr. B. Mugan, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 23 January 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1983 and lives in Iğdır. 5.     On 14 January 2005, while the applicant was serving as a conscript in the army, he fell from the roof where he was on guard. Subsequently, he was treated in various civilian and military hospitals. According to a medical report dated 4 May 2005, the applicant was diagnosed as suffering from a left parietal craniotomy and was declared unfit for military service. 6.     On 8 July 2005 the applicant applied to the Ministry of Defence for compensation for his injury. 7.     Following a tacit dismissal of the claim by the administrative authorities, the applicant initiated compensation proceedings in respect of the injuries he had sustained during his military service before the Supreme Military Administrative Court on 1 November 2005. He sought 20,000   Turkish liras (TRY) (approximately 12,400 euros (EUR) [1] ) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage. 8.     An expert report dated 4 October 2007 assessed the applicant’s pecuniary damage at TRY 58,384 (approximately EUR 36,260). 9.     On 19 October 2007 the applicant asked the court to increase his initial claim via an amendment ( ıslah ), stating that he had only become aware of the true extent of his pecuniary damage when he had received the expert’s report. 10.     On 28 November 2007 the Supreme Military Administrative Court ruled in favour of the applicant and awarded him the full amount of his initial claim in respect of pecuniary damage, namely TRY 20,000. It awarded him a further TRY 12,000 in respect of non-pecuniary damage. However, the court dismissed the applicant’s application for an amendment, considering itself bound by the initial claim. The court stated in particular:   “The purpose of an amendment is to rectify a procedural act. Having regard to the judgment of the Constitutional Court published in the Official Journal of 4   November 2000, we must conclude that, in civil law, injured persons are entitled to seek additional compensation once an expert report has been issued. However, in the proceedings before the Supreme Military Administrative Court, the time-limits of one year [from the date when a claimant becomes aware of the impugned act] and sixty days from the date of referral of the administrative authorities apply. Under section   46(4) of the Supreme Military Administrative Court Act, the amount claimed cannot be rectified once those deadlines have passed. Consequently, the applicant’s amendment claim must be rejected for being out of time ...” 11.     By a judgment of 16 April 2008 the Supreme Administrative Court dismissed the applicant’s application for rectification of its previous decision. II.     RELEVANT DOMESTIC LAW 12.     The relevant domestic law and practice in force at the material time can be found in Fatma Nur Erten and Adnan Erten v.   Turkey (no.   14674/11, §§   17 and 18, 25 November 2014). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 13.     The applicant submitted that the judgment of the Supreme Military Administrative Court to dismiss his additional claim for compensation for being out of time had deprived him of his right of access to a court and, therefore, of his right to a fair trial within the meaning of Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 14.     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 15.     The applicant maintained that he had been deprived of his right to a fair trial and effective access to a court on the grounds that the Supreme Military Administrative Court had dismissed his additional claim for compensation for being out of time. He alleged that the procedural rule which prevented a claimant from amending his or her initial claim in military administrative proceedings had operated so as to restrict his right to bring an action before he was aware of the true extent of the pecuniary damage he had suffered. 16.     The Government left it to the Court’s discretion to assess the applicant’s complaint and submitted that the legislation in question, which had prevented the applicant from modifying his initial claim before the military courts, had been amended on 30 April 2013. Accordingly, the present legislation (section 46(4) of Law no. 1603) now permitted claimants before military administrative courts to amend their initial claims once during the course of the proceedings at the first-instance level. 17.     The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it 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 (see Golder v. the United Kingdom , 21   January 1975, §§ 34 in fine and 35-36, Series A no.   18, and Z and Others v.   the United Kingdom [GC], no.   29392/95, §§ 91 ‑ 93, ECHR 2001-V). 18.     The right of access to the courts 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, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict 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 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev v. Bulgaria [GC], no.   36760/06, §   230, ECHR 2012). 19.     The Court notes that the present case concerns the application of a procedural rule at the material time which prevented a claimant from amending his or her initial claim during the course of proceedings before military administrative courts (see, in particular, Okçu v.   Turkey , no.   39515/03, § 32, 21 July 2009). The applicant in the present case brought a compensation claim of TRY 20,000 before the military administrative courts. The trial court ordered an expert report to determine the extent of the pecuniary damage suffered by the applicant. The expert concluded that the pecuniary damage amounted to TRY 58,384, in the light of which the applicant requested to amend his initial claim and seek additional damages of TRY 38,384, which was refused by the court solely on account of the applicable procedural rule. 20.     The Court takes the view that it could not have been reasonably expected of the applicant to have known the exact extent of his pecuniary damage at the time he lodged his case with the military administrative court since the true extent of that damage was only brought to light during the course of the proceedings by an expert report ordered ex officio by the court. Likewise, to require the applicant to overestimate his claim deliberately and lodge an application with a significantly higher amount in the hope that it would cover his damage and pay the requisite court fees in advance would be a disproportionate limitation to the right of access to a court (see Fatma Nur Erten and Adnan Erten, v.   Turkey (no.   14674/11, § 31, 25   November 2014). 21.     In the light of the Court’s findings in Fatma Nur Erten and Adnan Erten (ibid., §§ 29-33) in respect of the violation of the right of access to a court under Turkish administrative military law whereby the applicants were prevented from amending their initial claims during the course of the proceedings,   the Court finds no reason to depart from those conclusions in the present case. There has accordingly been a violation of Article 6 § 1 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.     The applicant claimed 100,000 United States dollars (USD) (approximately 74,800 euros (EUR)) in respect of pecuniary damage and the same amount in respect of non-pecuniary damage. He further claimed EUR   30,000 for legal fees but did not submit an invoice or any other documents in support of that claim. 23.     The Government submitted that the applicant’s just satisfaction claims as well as his claims for legal fees were excessive and unfounded. 24.     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   6,000 under this head. 25.     The Court further reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that applicants, as far as possible, are put in the position in which they would have been had that provision not been disregarded (see Mehmet and Suna Yiğit v.   Turkey , no.   52658/99, § 47, 17 July 2007). It considers that, having regard to the nature of the violation found under Article 6 § 1 of the Convention, in principle the most appropriate form of redress for this violation would be to restart or to reopen the proceedings. In this respect, the Court notes that section 64(i) of the Law on the Supreme Military Administrative Court in force as of 30 April 2013 provides for the reopening of proceedings following a judgment by the Court. Thus, it is now for the applicant to make use of that opportunity ( Bistrović v.   Croatia , no. 25774/05, § 58, 31   May 2007, and Fatma Nur Erten and Adnan Erten, cited above, § 37). 26.     Lastly, as 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. 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 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary 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 29 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Hasan Bakırcı   Nebojša Vučinić   Deputy Registrar   President [1] .     All conversions into euros have been made on the basis of the rate of exchange in force at the material time.