SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3564/06 by Sadettin CANBAZ against Turkey

The European Court of Human Rights (Second Section), sitting on 13 September 2011 as a Chamber composed of:

Françoise Tulkens , President , Danutė Jočienė , David Thór Björgvinsson , Giorgio Malinverni , András Sajó , Işıl Karakaş , Paulo Pinto de Albuquerque , judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 5 January 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sadettin Canbaz , was a Turkish national and live d in Sakarya.

On 8 May 2011 the Court was informed of his death on 1 August 2007 and that his successors, Mrs Cevriye Canbaz, Mr Sertan Canbaz, Mrs Mehtap Cepoğlu and Mr Erdinç Canbaz stated their wish to pursue the application.

For practical reasons, Mr Sadettin Canbaz will continue to be called “the applicant”, although his successors are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and also Ahmet Sadı k v. Greece , 15 November 1996, § 3 , Reports of Judgments and Decisions 1996 ‑ V ).

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 26 September 1995 the applicant underwent a hernia repair operation at the Sakarya Social Security Hospital.

On 18 March 1999 the applicant initiated legal proceedings against the doctor in charge and the hospital administration, claiming 500,000,000 Turkish liras (TRL) in compensation. He alleged that he had lost two thirds of his earning capacity as a result of the medical negligence of the doctor. In particular, he contended that, following the surgery, a disc had become infected due to the doctor ’ s malpractice.

On 14 July 2004 Law No. 5219, according to which the jurisdictional limits imposed in appeals and rectification requests were increased, entered into force.

On 22 December 2004 the Sakarya Civil Court of General Jurisdiction dismissed the case, relying on expert reports provided by the Supreme Health Council and the Istanbul Forensic Institute. It held that disc infection was a foreseeable complication of hernia operations, which had been treated appropriately in the applicant ’ s case by his doctor. It concluded that the applicant ’ s current health problems had not arisen from the surgery in question and therefore determined that no fault could be attributed to the doctor or the hospital.

On 5 May 2005 the Court of Cassation rejected the applicant ’ s request for leave to appeal on the grounds that the amount in dispute was less than the minimum amount (TRL 1,000,000,000,000) required under the recently amended legislation for an appeal to be lodged with the Court of Cassation. That being so, the applicant ’ s request for leave to appeal had to be declared inadmissible in accordance with Article 427 of the Code of Civil Procedure as amended by Law No. 5219.

On 24 October 2005 the Court of Cassation rejected a request for rectification brought by the applicant, as the sum in dispute in the matter also did not exceed the required threshold (TRL 6,000,000,000,000) for rectification pursuant to the aforementioned law.

COMPLAINTS

The applicant complained under Article 6 and 13 of the Convention that his right of access to court had been infringed. In this respect, he maintained that despite the fact that the threshold applied by the Court of Cassation had not entered into force at the time when his case had been introduced, the higher court had still relied on the new provision. He also claimed that this situation had violated the principle of vested rights.

THE LAW

The applicant complained under Articles 6 and 13 of the Convention that the application of new legislation concerning an increase in the jurisdictional limits imposed in order to lodge an appeal and to request rectification to his case had violated his right of access to court.

The Court firstly notes that, although the applicant relied upon Articles 6 and 13 in respect of his complaint, this complaint falls to be examined only under Article 6 § 1.

The Court recalls that the “right to court”, of which the right of access is one aspect, 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 Brualla Gómez de la Torre v. Spain , 19 December 1997, § 33, Reports 1997 ‑ VIII). The Court further notes that the manner in which Article 6 § 1 applies to higher judicial authorities, such as courts of appeal, supreme or constitutional courts, depends on the special features of the proceedings concerned, and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the role the court in question played in them (see, mutatis mutandis , Levages Prestations Services v. France , 23 October 1996, §§ 44– 45, Reports 1996 ‑ V).

As regards the present case, the Court notes that the Court of Cassation ’ s decisions relied on the amendment, which had entered into force on 14 July 2004 - that is, before the first-instance court delivered its judgment and substantially before the applicant had lodged his requests for leave to appeal and rectification. On the one hand, the Court observes that there is no clarity in the law as to which cases the amendment will be applied to. On the other hand, it could be considered that the national courts followed a generally recognised principle that, save where expressly provided to the contrary, procedural rules apply immediately to proceedings that are under way (see Brualla Gómez de la Torre , cited above, § 35 , and Wróblewski v. Poland (dec.), no. 9359/03, 29 August 2006) .

Furthermore, the Court considers that the legislative changes pursued a legitimate aim, namely increasing the jurisdictional limit for appeals to the Court of Cassation, so as to avoid that court becoming overloaded with cases of lesser importance.

The Court also observes that the applicant ’ s claims had been heard by the Sakarya Civil Court of General Jurisdiction, which had full jurisdiction. The fairness of the proceedings in that court was not in any way called into question before the Court (see, mutatis mutandis , Levages Prestations Services , cited above, § 48).

In the light of the foregoing and having regard to the proceedings as a whole, the Court considers that the applicant was not unduly hindered in his right of access to a tribunal and, accordingly, that the essence of his right guaranteed by Article 6 § 1 was not impaired.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Françoise Tulkens              Registrar              President