Communicated on 18 June 2018

SECOND SECTION

Application no. 59914/16 Enver NALBANT and Others against Turkey lodged on 9 September 2016

STATEMENT OF FACTS

The applicants are individuals or legal entities whose particulars are set out in the Appendix. They are represented before the Court by B. Giritligil Gökçen , a lawyer practicing in Istanbul.

A. The circumstances of the case

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

On 16 March 2012, a commercial bank served a payment order in the amount of 270,000,000 Euros (EUR) against the applicants who were the guarantors of a loan taken out by a joint-stock company.

In the meantime a temporary injunction was placed on the assets of the applicants at the bank ’ s request on 28 March 2012.

As a result of the applicants ’ raising an objection to the payment order of 16 March 2012, the bank brought proceedings against them before the Istanbul Commercial Court and requested the court to annul the applicants ’ objection and to rule for late-payment interest and up to 40% of the debt as a penalty for them objecting to the payment order. In those proceedings, it appears that the bank was exempt from paying court fees ( karar ve ilam harcı ).

On 24 December 2013 the Istanbul Commercial Court granted the bank ’ s claim almost in full and ordered the applicants to pay 648,969,988 Turkish Liras (TRY) (approximately EUR 227,612,978) plus interest and 40% of the debt as penalty. The court also ordered the applicants to pay 44,531,165 TRY (approximately EUR 15,355,574) in court fees which was calculated as a percentage of the admissible value of the dispute.

On an unspecified date, the applicants lodged an appeal and requested to be exempted from paying the impugned court fees, a quarter of which was required to be deposited with that court when lodging the appeal. The natural person applicants submitted in that connection that their assets had been under temporary injunction at the bank ’ s request and that they had no income other than their monthly pension, which was in any event not sufficient to cover the court fees. The applicant companies submitted that as a result of the injunction order placed on their assets, they were unable to have access to their funds. Relying on the Court ’ s findings in Kreuz v. Poland (no. 28249/95, ECHR 2001-VI), they submitted that requiring them to pay the impugned fees would impair the very essence of their right of appeal.

On 27 May 2014, the Court of Cassation rejected the applicants ’ request to be exempt from paying court fees. It held in that connection that the documents submitted by the natural person applicants concerning their financial situations were not convincing, without indicating further reasons. As regards the applicant companies, the Court of Cassation held that they could not benefit from legal aid in the form of exemption from court fees since they were commercial legal entities.

The applicants filed an objection against that decision and argued that the requirement to pay court fees on a percentage basis was incompatible with the principle of equality of arms especially since the bank had been exempt from paying the relevant fees when it lodged the claim against them. Alternatively, they requested the court to reduce the court fees to a reasonable amount and submitted a decision by the Grand Chamber of the Court of Cassation ’ s Civil Division (decision no. E.2010/10-550, K.2010/561) which had set out the principle that when a defendant party was exempt from paying court fees on a percentage basis ( nisbi harç ), the claimant party would be required to pay the court fees on the basis of the applicable fixed scale only ( maktu harç ).

The Court of Cassation rejected the applicants ’ objection on 18 December 2014. Reiterating the reasons in the decision of 27 May 2014, it held, in respect of the natural person applicants, that the supporting documents for their application for legal aid were found not only unconvincing but they were also not original copies. Subsequent to this decision, the applicants could not pay the impugned fees and their appeal was therefore regarded as to have never been lodged.

On 10 May 2016 , the Constitutional Court dismissed the applicants ’ complaint, holding that the court fees required from the applicants had not been excessive in view of the value of the litigation and therefore they had been no infringement of their right of access to a court. As regards the applicant companies, it held that there was no consensus among the member states of the Council of Europe as regards the granting of legal aid to legal entities.

B. Relevant domestic law

In civil proceedings in Turkey, every plaintiff is obliged to pay a portion of the court fees at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging an appeal unless granted exemption from such fees. In cases where a party who is required to pay court fees fails to do so within the relevant time-limit, and where no exemption has been granted by the court, the relevant judicial proceedings will be considered to not have been initiated.

Depending on the nature of the case, court fees can be fixed or be calculated as a percentage of the value of the sum claimed. The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party. Furthermore, in disputes where the court fees are calculated as a percentage of the value of the sum claim, there is no upper limit to cap the court fees a party may be charged. One exception to this rule is the claim being entirely dismissed. In this case, the fees are calculated on the basis of the fixed scale and the plaintiff is reimbursed for any fees he or she paid in excess.

There are categories of litigants who are exempted from court fees by virtue of statutory provisions. Among those categories of exempted litigants are certain banks which are subject to the banking reconstruction and amelioration processes by virtue of Law no. 4603, which provides for their full exemption from the requirement to pay court fees when they introduce collection proceedings for commercial loans.

An application for legal aid, which includes exemption from court fees, is subject to relevant articles of the Code of Civil Procedure. As a general rule, legal aid implies only a deferment from the obligation to pay court fees because if the party who was granted legal aid loses the case, he or she is required to pay the court fees at the end of the proceedings.

According to article 334 of the Code of Civil Procedure, a request for legal aid is granted if the merits of the claim could not be regarded as prima facie manifestly ill-founded and if the party requesting the legal aid is not able to partially or fully pay the procedural costs and expenses without carrying a significant financial burden. While the same article contains similar conditions for legal entities with a non-commercial purpose, no reference is made to commercial legal entities ’ eligibility for legal aid.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention about being deprived of their right of access to a court on account of the court fees imposed on them for appealing against the judgment of 24 December 2013. They further complain under Article 14, in conjunction with Article 6 § 1, of the Convention that the imposition of such disproportionate and e xcessive amount of court fees – which in a reverse situation would not be imposed on the bank - amounts to a discriminatory infringement of their right of access to a court. Finally , they submit under Article 6 § 1 of the Convention that the Court of Cass ation ’ s decision of 18 December 2014 was not adequately reasoned because it failed to address their essential arguments concerning the domestic case-law, in particular the decision of the Grand Chamber of the Court of Cassat ion ’ s Civil Division (E.2010/10 ‑ 550, K.2010/561).

QUESTIONS TO THE PARTIES

1. Given the amount of court fees required from the applicants to appeal against the judgment of 24 December 2013, was their right of “access to a court”, as secured by Article 6 § 1, respected (see, inter alia, Kreuz v. Poland , no. 28249/95, ECHR 2001-VI; Teltronic -CATV v. Poland , no. 48140/99, 10 January 2006; and Nieruchomości Sp. z o.o . v. Poland , no. 32740/06, 2 February 2010)? Furthermore, given the significant advantage enjoyed by the applicants ’ opponent, who had been exempt from paying security costs and court fees in the injunction and collection proceedings, respectively, has there been a breach of the principle of equality of arms in the latter proceedings concerning the applicants ’ right to effective enjoyment of a right of access to a court?

2. Was the reasoning contained in the decisions of 27 May 2014 and 18 December 2014 of the Court of Cassation sufficient to comply with the obligation of the courts under Article 6 § 1 of the Convention to give reasons for their judgments? Why did the Court of Cassation find the natural person applicants ’ supporting documents unconvincing given that all their funds except for their pension were placed under a temporary injunction? Lastly, did the latter decision state the reasons why certain case ‑ law of the Court of Cassation, in particular the decision of the Grand Chamber of the Court of Cassation ’ s Civil Division (no. E.2010/10-550, K. 2010/561, 3 November 2010) was not found to be applicable to the applicants ’ case?

Appendix

N o .

Firstname LASTNAME

Birth year

Nationality

Place of residence

Enver N ALBANT

1940Turkish

Istanbul

Ağaçkakan İnşaat Turizm San. ve Tic. A.Ş.

1996Turkish

Istanbul

Ağaçkakan Yatırım Organizasyonu ve Danışmanlığı Tic. Ltd. Şti .

1989Turkish

Istanbul

Duruhan Yatırım Organizasyon Danışmanlık ve Turizm Tic. A.Ş.

1996Turkish

Istanbul

Elif Döne Nalbant Okyay

1970Turkish

Istanbul

Fatma Müberra RİZO

1964Turkish

Istanbul

Vladko R Ä° ZO

1955Turkish

Istanbul

Ahmet Sabri ULUÄž

1967Turkish

Istanbul