SECOND SECTION

DECISION

Applications nos. 30504/10 and 33134/10 Turan ÅžAT against Turkey and Mehmet HORUÅž against Turkey

The European Court of Human Rights (Second Section), sitting on 16 June 2020 as a Committee composed of:

Egidijus Kūris, President, Ivana Jelić, Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on 28 April 2010 and 29 April 2010 respectively,

Having regard to the decision of 6 April 2018 to give notice to the Turkish Government (“the Government”) of the complaints concerning the alleged violation of the applicants ’ right of access to a court and to declare inadmissible the remainder of the applications;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

Having deliberated, decides as follows:

THE FACTS

1 . The applicant in the first case, Mr Turan Åžat, is a Turkish national, who was born in 1975 and lives in Ankara. He was represented before the Court by Mr G. Zorcu, a lawyer practising in Ankara.

2 . The applicant in the second case, Mr Mehmet Horuş, is a Turkish national, who was born in 1977 and lives in Ankara. He was represented before the Court by Mr A. Yağlı, a lawyer practising in Istanbul.

3 . The Turkish Government (“the Government”) were represented by their Agent.

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

5 . In the context of a defamation trial heard by the Ankara Assize Criminal Court, the applicants were among the lawyers who were representing the accused, who was another lawyer. The defamation case related to the speech made by the accused during his campaign for presidential candidacy of the Bar Association, criticising the Court of Cassation and the Supreme Council of the Judges and Prosecutors.

6 . According to the applicants ’ version of events, in the hearing of 9 November 2005, the Judge H. U. who was presiding the trial started speaking in a low voice with the public prosecutor and when the lawyers of the accused, including the applicants, demanded that he speak louder, he responded that he was talking only with the public prosecutor. To which, the applicants replied that he did not have a right to speak privately with the public prosecutor during the trial. Then the judge told them that they were trying to distort the situation and that he, in fact, could only speak so loudly. A lawyer remarked that he was now speaking loudly. The judge rebuked the lawyers by telling them to mind their manners ( edepsizlik etmeyin ) and ordered them to sit down by addressing them in the second person singular ( otur yerine ). The lawyers asked this exchange to be reflected in the minutes of the hearing. The judge recorded the events in the following way:

“while I was asking the public prosecutor ’ s opinion, the lawyers made improper remarks all at once, stated that they couldn ’ t hear me, so I ordered them to sit down, to which they replied that now that I had started yelling, my voice could be heard. So, I demanded them to mind their manners.”

7 . The lawyers present in the hearing including the applicants considered that the version of events had not been reflected faithfully in the minutes so they drew up their own version in a separate paper and signed it collectively.

8 . On the basis of the events of 9 November 2005 all the lawyers in that case including the applicants lodged a compensation claim before the Ankara Magistrates ’ Court against the Judge H. U., alleging that he did not reflect the events accurately in the minutes of the hearing of 9 November 2005. They further argued that the way in which the judge treated them had been derogatory, conflict-seeking and had therefore caused them unjustified stress. They each requested what they considered to be a symbolic amount of 200 Turkish liras (TRY) (about 125 Euros (EUR) at the time) for non-pecuniary damage in total amounting to TRY 4,000 (about EUR 1,500) collectively sought from the judge.

9 . In his reply, the Judge H.U. rejected the allegations and argued that his actions and words towards the claimants in the hearing of 9 November 2005 had been solely aimed at maintaining the order of the courtroom. He explained in that respect that he could not have twenty lawyers all talking to him at the same time. Finally, he submitted that the Court of Cassation had the competence to hear the case.

10 . On 5 June 2007 the Ankara Magistrates ’ Court dismissed the case on the ground of lack of jurisdiction, holding that the Court of Cassation was competent to examine the case.

11 . On 7 November 2007 the applicants and other claimants therefore lodged their case before the Court of Cassation.

12 . After holding three hearings, the Court of Cassation dismissed the case on the merits on 27 January 2009. In its reasoning, it noted that the applicants had based their claim under Article 573 § 4 of Code of Civil Procedure arguing that the minutes of the hearing of 9 November 2005 had not reflected the event in question accurately. The defendant judge had reflected the event in the minutes, including the statement “mind your manners,” which the applicants considered to be defamatory. However, neither the statement on its own nor the context in which it was invoked or the manner in which the events were reflected in the minutes drawn up by the judge were of a quality to affect the outcome of the case presided by the Judge H.U. The Court of Cassation further noted that the defendant judge ’ s intention had been to maintain the order of the courtroom and not to offend the applicants. In dismissing the case, the Court of Cassation fined each claimant to a monetary fine of TRY 500 and ordered non-pecuniary damages in the amount of TRY 250 to be paid by each to the judge. It further ordered the cost of legal representation of the Judge H.U to be borne by the claimants.

13 . On 14 October 2009 the Grand Chamber of the Court of Cassation in Civil Matters in its role as the appeal body in such disputes dismissed the applicants ’ appeal on the grounds of ratione valoris .

14 . Independence of judges is guaranteed in the Turkish Constitution. The Constitution prohibits any organ, authority, office or individual to give orders, instructions or recommendation to courts or judges in the exercise of their judicial power (Article 138 of the Constitution).

15 . Judges are not entirely immune from civil lawsuits in relation to wrongdoing in discharging their judicial duties. At the time of the events, Article 573 of the former Code of Civil Procedure (Law no. 1086), as it was in force then, provided as follows:

“Liability of Judges

A compensation suit may be filed for [the wrongdoing of judges] in their judicial function [solely] on the grounds provided below:

1. A judicial decision has been made contrary to law and justice as a result of a judge ’ s bias, favouritism or dislike of a party in the proceedings,

2. A judicial decision that is so apparently and grossly contradiction to law,

3. A judicial decision is rendered on the basis of a reason which is not reflected in the minutes of hearings,

4. A decision is based on the minutes or decisions that are altered or distorted or statements inaccurately represented so as to influence the outcome of the proceedings,

5. A decision is rendered contrary to law on the basis of a promised or granted interest,

6. A judge has deliberately withheld others from exercising their rights,

7. Unjustified refusal to carry out judicial duties.”

16 . Until 9 February 2011 compensation cases on the basis of the provision quoted above could be brought directly against the judge. The provision was amended on that date so that such a case could be brought only against the State.

17 . Finally Law no. 1086 provided that in the event when the case is dismissed on the merits, claimants would be fined anywhere between 500 to 5000 TRY and the court would, on its own motion, determine an appropriate amount for counter damages to be granted to the defendant judge.

18 . The current Code of Civil Procedure (Law no. 6100) also contains a provision for compensation claim on the basis of wrongdoing of judges in carrying out their judicial duties (Article 46). The grounds for bringing such a case are not significantly different from the provision in the former Code of Civil Procedure. Law no. 6100 further stipulates that the State may recover the amount as a result of such a law suit from the judge concerned within one year of the date of payment. Moreover, in the event where the compensation case is dismissed, it is no longer possible under Law no. 6100 for the courts to grant counter damages to the judge since the defendant is no longer the judge concerned. Finally the judge ’ s criminal or disciplinary conviction in respect of the same event is not a condition to file a case for damages on account of an unlawful judicial decision issued by that judge in the context of judicial proceedings.

19 . The Government submitted a doctrinal interpretation on civil liability concerning judges. According to that interpretation, the provision set out in Article 573 of Law no. 1086 provided for a limited set of grounds engaging a judge ’ s liability and that therefore claimants who complain about the treatment they received from a judge not related to a judicial function, could only bring a tort claim under the general provisions of tort law, for example for simple defamation, under Article 41 of the Code of Obligations.

20 . The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant point reads as follows:

“16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.”

21 . The relevant extracts from the European Charter on the Statute for Judges of 8-10 July 1998 [1] read as follows:

“5.2. Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.

5.3. Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body. This body has the power, if a careful and close examination makes a dereliction on the part of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least to recommend such referral to an authority normally competent in accordance with the statute, to make such a reference.”

22 . The Consultative Council of European Judges, an advisory body of the Council of Europe on issues related to the independence, impartiality and competence of judges, adopted, during its 11th plenary meeting (Strasbourg, 17-19 November 2010), a Magna Carta of Judges (Fundamental Principles) summarising and codifying the main conclusions of the Opinions that it already adopted. The relevant parts of the document read as follows:

“Ethics and responsibility

...

21. The remedy for judicial errors should lie in an appropriate system of appeals. Any remedy for other failings in the administration of justice lies only against the state.

22. It is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to any personal liability, even by way of reimbursement of the state, except in a case of wilful default.”

23 . On 17 November 2010 the Committee of Ministers adopted Recommendation to member states on judges: independence, efficiency and responsibilities (CM/Rec(2010)12), which provides, as regards the liability of a judge or disciplinary proceedings, as follows:

“66. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.

67. Only the state may seek to establish the civil liability of a judge through court action in the event that it has had to award compensation.

68. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice.

69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.

70. Judges should not be personally accountable where their decision is overruled or modified on appeal.

71. When not exercising judicial functions, judges are liable under civil, criminal and administrative law in the same way as any other citizen.”

24 . The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999 and updated on 14 November 2017. Its Article 7 (2) reads as follows:

“Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.

The remedy for judicial errors should lie in an appropriate system of appeals. Any remedy for other failings in the administration of justice lies only against the state.

It is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to any personal liability, even by way of reimbursement of the state, except in a case of wilful default.”

COMPLAINTS

25 . The applicants complained that the imposition of a fine and the non-pecuniary damages awarded at the end of those compensation proceedings on a discretionary and unilateral basis by the court constituted an unjustified restriction of their right of access to justice.

THE LAW

26 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).

27 . The applicants complained under Articles 6 and 13 of the Convention that the proceedings resulting in the imposition of a fine for bringing an unsuccessful lawsuit as well as the ordering of a counter-compensation on a discretionary and unilateral basis had been incompatible with their right of access to a court.

The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention only, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

28 . The Government explained that Articles 573-576 of the former Code of Civil Procedure providing for the imposition of a fine and granting of counter damages to the judge had sought the legitimate aim of discouraging claimants from using this special procedure against judges in an abusive or vexatious manner. They further considered that the reason behind granting counter damages to the judge had been to alleviate the stress and unmeritorious exposure of the judge to a civil law suit. Finally, the Government considered that in the circumstances of the present case neither the fine that had been imposed on the applicants nor the non-pecuniary damages the applicants were ordered to pay had been disproportionate to an extent that would encroach on the applicants ’ right to a court. In that connection they further argued that the total amount the applicants were ordered to pay, could not be considered as excessive especially with respect to the applicants ’ financial situation and their profession.

29 . The applicants submitted that their object was not to contest the necessity of having provisions in order to strengthen the independence of the judiciary. That being so, they considered that there were limits to things that a judge could say or not say in a court of law against the lawyers who also exercised a judicial function. In that respect they considered that the case demonstrated double standards and the insufficient protection accorded to lawyers in practice in the Turkish justice system. They submitted that in the criminal justice system lawyers were recognised as officers of the law in carrying out judicial duties and were counted in the same category and rank of judges and prosecutors. However in practice they argued that they were not given the requisite level of respect and dignity they deserved. In their view, the imposition of a fine and the granting of counter-damages to the defendant at the end of the lawsuit raised an issue of access to justice from the angle of foreseeability.

30 . The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Károly Nagy v. Hungary [GC], no. 56665/09, § 60, 14 September 2017 with further references).

31 . To the extent that an issue may arise with regard to the applicability of Article 6 of the Convention concerning the dispute related to the civil liability proceedings brought by the applicants against the judge in connection with the latter ’ s performance of his judicial duties, the Court notes that unlike the situation in many Contracting states (see, Gryaznov v. Russia , no. 19673/03, § 76, 12 June 2012), judges in Turkey do not seem to enjoy immunity from civil suits concerning their judicial acts. It appears that until 2011, they were the direct respondent in such claims whereas from 2011 to present, the defendant of such a case is no longer the judge even though the latter is still required to intervene and submit a defence in such proceedings. Finally, although the respondent State answers to claims in such disputes presently, in the event where the claim is successful, the State has the right to recover damages from the judge concerned.

32 . Against this background, it is apparent that at the relevant time of the dispute, the applicants had a right as set out in the former Code of Civil Procedure to seek damages and lodge a compensation case directly against a judge on the basis of alleged wrongdoing. The outcome of those proceedings in as much as they pertain to the compensation sought by the claimants or the counter-compensation granted to a judge involved a pecuniary dimension and had been therefore decisive for the parties ’ civil rights.

33 . The Court therefore considers that Article 6 § 1 under its civil limb applies to these proceedings.

34 . As to the question whether the imposition of a fine and the ordering of counter damages to the defendant judge in those proceedings were compatible with the guarantees enshrined in Article 6 § 1 of the Convention, the Court will examine the issue from the standpoint of applicants ’ right of access to court.

35 . In that connection the Court reiterates that Article 6 § 1 of the Convention secures everyone 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 Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 84, 29 November 2016, and Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18).

36 . The right of access to a court, as secured by Article 6 § 1, 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. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. The final decision as to observance of the Convention ’ s requirements rests with the Court, which must be persuaded that the limitations applied do 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, among many others, Lupeni Greek Catholic Parish and Others , cited above, § 89 and Waite and Kennedy v. German y [GC], no. 26083/94, § 59, ECHR 1999 ‑ I).

37 . The Court further reiterates that various limitations, including financial ones, may be placed on the individual ’ s access to a “court” or “tribunal”. In particular, the imposition of a fine in order to prevent claimants from addressing a court without real necessity or in an abusive manner, has the legitimate aim of ensuring the proper administration of justice and is not, as such, in conflict with Article 6 § 1 of the Convention, unless the related decision itself amounts to arbitrariness or the amount of the fee imposed is so high as to constitute a real impediment restricting access to a court (see Maillard v. France , no. 35009/02, § 35, 6 December 2005; Toyaksi and Others v. Turkey (dec.), nos. 43569/08 and others, 20 October 2010; Krikorian v. France (dec.), no. 6459/07, § 103, 26 November 2013; Grüner v. Germany (dec.) no. 38130/12, § 18, 17 October 2017).

38 . In coming to the conclusion that the imposition of a fine did not substantially restrict those applicants ’ right of access to a court in the above mentioned cases, the Court took into account, inter alia , the fact that the impugned fine was not imposed at the initial stage of the proceedings and that the domestic courts in question had conducted the proceedings and determined the dispute irrespective of the payment of fine (see, in particular, Toyaksi and Others , cited above, and Grüner , cited above, § 19).

39 . Turning to the circumstances of the present case, the Court notes that the Court of Cassation, after examining and dismissing the applicants ’ claims on the merits, imposed on them a fine of TRY 500 and decided to grant counter-damages of the same amount the applicants had sought from the defendant judge, that is TRY 250.

Accordingly, the Court will analyse the imposition of the fine and ordering of the countering damages separately; however, in so doing it will have regard to the nature of the proceedings at issue. In that connection the Court considers that the special nature of the proceedings in question on account of a judge ’ s alleged wrongdoing must be assessed from the perspective of the need to strike the requisite balance between protecting a judge from frivolous, vexatious or manifestly ill-founded claims in respect to their function and to grant individuals reasonable means to protect their rights. In that connection the Court has previously found that the immunity given to a judge from civil claims in damages to be a permissible restriction on the right of access to court (see Ernst and Others v. Belgium , no. 33400/96, § 50, 15 July 2003 and Gryaznov , cited above, § 76). In addition, the Court attaches great importance to safeguarding judicial independence and the necessity to shield judges from being personally and directly targeted by civil lawsuits as has been emphasized in relevant international texts and standards (see paragraphs 20 - 24 above).

40 . Thus, in respect of the monetary fine, the Court notes that it was imposed on the applicants after their claims were examined on the merits by the Court of Cassation. The fact that those fines were imposed at the first-instance stage of the proceedings did not therefore impinge on the applicants ’ right of access to a court. The Court notes in that connection that the fine for bringing an unmeritorious lawsuit against a defendant judge had been clearly set out in the domestic law and was therefore foreseeable for the applicants. This restriction, viewed in the special features of the proceedings at issue, and the need to protect judges from unwarranted lawsuits did not therefore unduly restrict the applicants ’ right of access to a court.

41 . As regards the question whether the granting of counter-damages to the defendant judge by the Court of Cassation ’ s initiative and on a discretionary basis entailed by itself a violation of Article 6 § 1 of the Convention, the Court first notes that it was the applicable domestic law that demanded that an appropriate compensation be granted to a judge when the claim failed (see paragraph 17 above). Therefore it cannot be argued that the ordering of counter damages had been unforeseeable or arbitrary. Secondly, the Court notes that the Court of Cassation granted the defendant judge exactly the same amount of non-pecuniary damages sought by the applicants. It cannot therefore be said that the Court of Cassation used its margin of appreciation in an unreasonable or arbitrary manner.

42 . Against this background the Court considers that the imposition of a fine and ordering of the counter damages by the Court of Cassation served the legitimate aim of fair administration of justice. Having regard to proportionate nature of the amounts imposed on the applicants and the fact that they were able to have their claims examined on the merits, the Court is not convinced that they had to bear an excessive burden.

43 . It follows that the application 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,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 9 July 2020 .

Hasan Bakırcı Egidijus Kūris Deputy Registrar President

[1] Adopted by participants from European countries and two judges’ international associations, meeting in Strasbourg on 8-10 July 1998 (meeting organised under the auspices of the Council of Europe), endorsed by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12-14 October 1998, and again by judges and representatives from Ministries of Justice from 25 European countries, meeting in Lisbon on 8-10 April 1999.