Communicated on 18 November 2020 Published on 7 December 2020

SECOND SECTION

Application no. 56064/16 Adil AKTAY against Turkey and 2 other applications (see list appended)

SUBJECT MATTER OF THE CASE S

The applications, details of which are set out in the appendix, concern the imposition of fines on the applicant by the Constitutional Court in the course of individual applications lodged by him as a legal representative on behalf of his clients, some of whom had passed away prior to the date of lodging the applications.

The Constitutional Court considered that the applicant had abused the judicial process by lodging an application on behalf of deceased individuals and therefore imposed on him for each individual application a fine of 1,000 Turkish liras (TRY) (approximately 300 Euros (EUR) at the time). The Constitutional Court further ruled that the Bar Association to which the applicant had been a member be informed of its decision for disciplinary purposes. The decision on abuse of process, which was final and not amenable to appeal, was given at the same time as the admissibility of the applications. It also appears that it is not the Constitutional Court ’ s practice to send a warning to the legal representative before rendering its decision on abuse of process when it discovers that an application has been lodged by him or her on behalf of a deceased applicant.

The applicant complains under Article 6 § 1 of the Convention that his right of access to a court was breached on account of the absence of an avenue to challenge the Constitutional Court ’ s finding that he had abused the judicial process. He submits in that connection that in disputes concerning property rights, such as the one he brought before the Constitutional Court, it is the long-standing practice of judicial authorities, including the compensation commission, to warn representatives first before rejecting their application and grant them an opportunity to submit a power of attorney in respect of the heirs in case the latter wish to pursue the proceedings. The applicant alleges that the Constitutional Court ’ s departure from this long standing rule had been unforeseeable especially given the fact that he had been representing those clients in the context of a collective application and in all stages of the proceedings which had taken a long time.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case? In particular, was there a “dispute” over a “civil right or obligation” within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis , Micallef v. Malta [GC], no. 17056/06, §§ 74-75, ECHR 2009 ) ?

2. If so, has there been a breach of the applicant ’ s right of access to a court, guaranteed by Article 6 § 1 of the Convention, in view of the procedure whereby the Constitutional Court decided to fine him for abuse of process without a warning; or alternatively, in view of the fact the applicant could not challenge the decision that he abused the process in separate proceedings (see, mutatis mutandis , De Jorio v. Italy , no. 73936/01, § 45, 3 June 2004)?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Nationality

Represented by

Date and number of the Constitutional Court decision

and the fine imposed

1

56064/16

Aktay

v. Turkey

25/08/2016

Adil AKTAY

1959Mersin

Turkish

Utku Çağrı AKTAY

15/02/2016,

no. 2015/18934,

1,000 TRY.

2

58000/16

Aktay

v. Turkey

10/09/2016

Adil AKTAY

1959Mersin

Turkish

Utku Çağrı AKTAY

09/03/2016,

no. 2016/421

1,000 TRY

3

15087/17

Aktay

v.Turkey

09/01/2017

Adil AKTAY

1959Mersin

Turkish

Utku Çağrı AKTAY

29/06/2016,

no. 2016/6310

1,000 TRY