SECOND SECTION
CASE OF
EŞİM v. TURKEY
(Application no.
59601/09)
JUDGMENT
STRASBOURG
17 September 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
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
The case originated in an application (no.
59601/09) 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 2009.
The applicant was represented by Mr O. Doğan,
a lawyer practising in Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
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
The applicant was born in 1969 and lives in İstanbul.
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 to be suffering from a permanent disability and discharged from the
army. He was also awarded a sixth-degree disability pension.
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.
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.
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 2007.
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.
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 2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Military Administrative Law
Section 43 of the
Supreme Military Administrative Court Act (Law No. 7602 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 ....”
B. Civil administrative law
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
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.
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
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
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.
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 2004. 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.
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. 47273/99, § 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. 42527/98, § 43, ECHR 2001-VIII).
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.
38695/97, § 36, ECHR 2000-II, and Mortier v. France, no. 42195/98, § 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).
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. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98,
41484/98, 41487/98 and 41509/98, § 36, ECHR 2000 I).
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. 35787/03, § 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. 36998/02, § 24, 27 July 2006).
In the instant case the Government argued that
the applicant had learned about the bullet in his head in 2004. 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 1995.
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 1991. 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.
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.
In the instant case the Court holds that it
cannot be considered reasonable to expect the applicant to have lodged his
compensation claim within five years, since it is undisputed that he was
unaware of the bullet in his head on 25 September 1995. 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.
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).
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
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.
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.
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. 52658/99, § 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.
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 3,000
(three 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 17 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
