SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 43569/08, 5801/09, 19732/09 and 20119/09 by Ä°brahim TOYAKSÄ° and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 20 October 2010 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , András Sajó , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application s lodged on the dates indicated in the table below ,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish nationals. Their names, dates of birth and places of residence appear in the table below.

A. The circumstances of the cases

In all four applications, the applicants were issued minor fines by the Court of Cassation and the Supreme Military Administrative Court under section 442 of the Code of Civil Procedure ( Hukuk Usulü Muhakemeleri Kanunu ) following the rejection of requests for rectification they had brought before those courts.

All of the applicants complained under Article 6 § 1 of the Convention that their right of access to court was violated by the imposition of fines for having used a legal remedy, which was made available to them by law.

The other complaints that were raised by the applicants and specific facts relevant to these complaints are indicated in the table below.

B. Relevant domestic law and practice

1. Code of Civil Procedure

Section 440

“Rectification of a Court of Cassation decision may be requested for the following reasons, within fifteen days after the notification of the impugned decision:

Section 442

“If the request for rectification is not based on one of the conditions (set forth by Section 440 of this Code), it shall be rejected and a fine shall be imposed on the applicant.”

2. Law no. 5236 concerning changes to be made to the Code of Civil Procedure

Section 20

“Sections 440-444 of the Code of Civil Procedure shall be abolished as of 1 June 2005.”

3. Code of Civil Procedure

Provisional section 2

“Sections 427-454 of the Code of Civil Procedure shall be applied, without taking into account the changes made by Law no. 5236, as regards judgments which had been appealed against prior to the date the District Courts take office.”

THE LAW

Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join them.

1. Relying on Article 6 of the Convention, all of the applicants claimed that the imposition of fines on them as a result of their unsuccessful requests for rectification constituted a violation of their right of access to court.

The Court notes that all the applicants, except for the one in application no. 43569/08, requested rectification following decisions of the Court of Cassation, which upheld the judgments of the first-instance courts dismissing their cases. In application no. 43569/08, the applicant requested rectification after the judgment of the Supreme Military Administrative Court , as this is the only recourse available against the judgments of that court. The Court of Cassation and the Supreme Military Administrative Court rejected the applicants ’ requests and on the basis of section 442 of the Code of Civil Procedure, imposed minor fines on them ranging from 120 to 170 Turkish Liras [1] . The Court observes that although the above-mentioned section 442 was subsequently abolished by Law no. 5236, it still remained valid in practice as the provisional section of the Code of Civil Procedure delayed the entry into force of that abolition.

The Court notes that the applicants ’ rectification requests were not based on the conditions set out in section 440 of the Code of Civil Procedure, as they were solely complaining about the outcome of the appeal proceedings. It observes that the fines imposed on them merely constituted a penalty for having occupied the higher courts in a vexatious manner. Moreover, none of the applicants complain that they were unable to have their cases heard due to those fines. T he applicants ’ right of access to court was not impaired in any way as they had had the opportunity to have their cases examined thoroughly before two levels of jurisdiction prior to their requests for rectification. The Court reiterates that the imposition of a fine in order to prevent a build-up of cases before the courts and to ensure the proper administration of justice is not, as such, in conflict with the right of access to court (see G.L. v. Italy , no. 15384/89, Commission decision of 9 May 1994, Decisions and Reports (DR) 77 ‑ B, p. 5 ) . Furthermore, based on the case files, there is nothing to prove that the amount of the fines imposed on the applicants constituted a substantial economic burden on them.

In the light of the foregoing considerations and the specific circumstances of the case, the Court concludes that the imposition of fines on the applicants for their unsuccessful requests for rectification does not constitute a violation of the right of access to court (see G.L. v. Italy , cited above ; Poilly v. France ( dec .) , no. 68155/01, 15 October 2002; and a contrario , T. v. Austria , no. 27783/95, § § 71-72 , ECHR 2000 ‑ XII ). The complaints concerning the above-mentioned right must therefore be rejected as being manifestly ill-founded.

2. In application no. 43569/08, the applicant complained under Article 7 of the Convention about the imposition of a fine without there being a legal basis for it.

The Court considers that the impugned fine does not constitute a penalty within the meaning of Article 7 of the Convention since it is of a procedural nature, its sole purpose being the proper administration of justice. The Court therefore declares this complaint inadmissible for being incompatible ratione materiae with the Convention.

Invoking Article 6 § 1 of the Convention, the same applicant further alleged that the Supreme Military Administrative Court lacked independence and impartiality due to its composition. Having regard to the Yavuz and Others v. Turkey decision (no. 29870/96, 25 May 2000) , t he Court reiterates that there is nothing in the proceedings before the Supreme Military Administrative Court and its decisions that would call into question its independence and objective impartiality. The Court thus holds that this complaint is inadmissible as it is manifestly ill-founded.

3. In application no. 19732/09, the applicant complained under Article 6 § 1 of the Convention that the domestic proceedings lasted for an unreasonably long time. The impugned proceedings lasted for a period of two years at three levels of jurisdiction. The Court declares this complaint inadmissible for being manifestly ill-founded as the length raises no issue under the Convention.

The same applicant further submitted under Article 1 of Protocol No. 1 to the Convention that the liquidator of the Bank where he had deposited his savings did not pay the amount determined by its own decision. The Court observes that the applicant ’ s claim is not based on or acknowledged by a court decision but a decision of the liquidator itself. Moreover, he did not bring any proceedings before domestic courts in order to receive the amount determined, although such recourse was available under the Banking Code (Law no. 4389). Consequently, the Court holds that the complaint is inadmissible for non-exhaustion of domestic remedies (see, mutatis mutandis , Sıdıka Yılmaz v. Turkey ( dec .), no. 25789/04 and 23 others, 12 December 2006).

4. Finally, insofar as the applicants in applications nos. 5801/09, 19732/09 and 20119/09 complained under Article 6 § 1 of the Convention about the outcome of the domestic proceedings and the courts ’ interpretation of domestic law, the Court finds that in the present cases, the national courts ’ decisions were given on the basis of domestic law and the particular circumstances of the cases. There is no element which might lead it to conclude that the domestic courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the domestic law (see Göktaş v. Turkey , no. 66446/01, §§ 32-34, 29 November 2007). The Court holds that these complaints are of a fourth-instance nature and rejects them as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Stanley Naismith Françoise Tulkens Registrar President

No.

Application no.

Lodged on

Applicant ’ s name,

date of birth,

place of residence

Case-specific facts

Remaining complaints

43569/08

22/08/2008

Ä°brahim TOYAKSÄ°

1978Gaziantep

The applicant brought proceedings before the Supreme Military Administrative Court , requesting the annulment of an administrative decision. On 18 October 2007 the court dismissed the case and on 6 March 2008 it rejected his request for rectification. The court further imposed on him a fine of 120 Turkish Liras (TRY) for the unsuccessful rectification request.

Article 6 – The applicant complained that the Supreme Military Administrative Court had lacked independence and impartiality.

Article 7 – The applicant maintained that he had been fined on the basis of a provision which had already been abolished.

5801/09

11/08/2008

Ahmet OÄžUZHAN

1935Istanbul

On 8 May 2007 the Kadıköy Civil Court of General Jurisdiction dismissed the applicant ’ s case against a third person in which he claimed compensation for defamation. The court rendered its judgment on the basis of evidence submitted by both parties. On 10 April 2008 the Court of Cassation upheld the judgment of the first-instance court and on 30 June 2008 it rejected the applicant ’ s request for rectification. The higher court further imposed a fine of TRY170 on the applicant.

Article 6 – The applicant complained about the outcome of the proceedings.

19732/09

03/04/2009

Mustafa TURGUT

1965Izmir

The applicant ’ s parents had a certain amount of assets in a bankrupt bank (“the Bank”). Following the transfer of the Bank ’ s assets and management to the Savings Deposit Insurance Fund, an amount corresponding to most of the assets was paid to the applicant. Subsequently, he applied to the liquidator ( iflas idaresi ), claiming payment of the amount lost as a result of the interest rate applied to the main amount. Following the liquidator ’ s decision, which partially accepted his claim, on 27 December 2006 he brought proceedings before the Istanbul Civil Court of General Jurisdiction, arguing that the liquidator had miscalculated the amount to be paid. On 28 December 2007 the court dismissed the case as it had been lodged out of time. On 1 May 2008 the Court of Cassation upheld the first-instance court ’ s judgment and on 9 February 2009 it rejected the applicant ’ s request for rectification, imposing on him a fine of TRY170.

Articles 3, 6, 7, 14 and 17 -

1) The applicant complained about the excessive length of the proceedings.

2) He maintained that the court had misinterpreted the domestic law as regards the statutory time-limit. He also complained about the outcome of the proceedings.

Article 1 of Protocol No. 1 – The applicant submitted that the liquidator had failed to pay the amount specified in the decision.

20119/09

09/04/2009

Sadettin KESKÄ°N

1959Istanbul

The applicant brought compensation proceedings against a third person, E.T., claiming that he had made defamatory remarks about him. On 3 May 2007 the Mersin Civil Court of General Jurisdiction dismissed the case, holding that the impugned remarks were not of a defamatory nature and that E.T. had made these statements as part of his duty. On 15 September 2008 the Court of Cassation upheld the judgment of the first-instance court and on 26 February 2009 it rejected the applicant ’ s request for rectification. The higher court further imposed a fine of TRY170 on the applicant.

Article 6 -

1) The applicant complained about the outcome of the proceedings.

2) He maintained that the Court of Cassation had failed to render a reasoned decision.

[1] . Ranging from 60 to 90 euros at the time.