CASE OF MEHMET AND SUNA YİĞİT v. TURKEY
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six-month period);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
3. The applicants were born in 1970 and 1969 respectively and live in the District of Ergani, in Diyarbakır. 4. On 27 June 1997 the applicants' daughter, Esra Yiğit, then aged seven months, underwent surgery at the Dicle University Medical Faculty Hospital for a congenital hip dislocation. During the operation, she had a cardiac arrest and lapsed into a coma. On 13 July 1997 Esra Yiğit came out of the coma, but she was unable to move her arms and legs. On 15 July 1997 she was admitted to the neurosurgery department and was diagnosed as suffering from “hypoxic brain syndrome”. On 21 July 1997 she was discharged from the hospital. 5. On 13 May 1998 the applicants filed a compensation claim with the Rectorate of the Dicle University for the pecuniary and non-pecuniary damage caused by the alleged negligence of the medical staff who performed the operation. No response was given to the applicants within the sixty day period prescribed in the Code of Administrative Procedure. 6. On 11 August 1998 the applicants filed an action with the Diyarbakır Administrative Court, requesting compensation. They also requested legal aid for the court fees. 7. On an unspecified date Mehmet Yiğit obtained a certificate from the office of the headman (muhtarlık) attesting to his indigence. 8. On 26 August 1998 Mehmet Yiğit further applied to the Office of the District Governor in Ergani, requesting an official certificate as to whether he owned property in Ergani. 9. On the same day, the Office of the District Governor, the Directorate of Land Registration and the Ergani Municipality drafted attestations stating that Mehmet Yiğit did not own any immovable property in Ergani. 10. On 27 August 1998 the Ergani Revenue Department informed the District Governor's Office that it had no records indicating that Mehmet Yiğit paid tax. 11. On an unspecified date the Diyarbakır Administrative Court dismissed the case on procedural grounds. The domestic court stated that the applicants could lodge a new case within one month following the rectification of the defects in their application. 12. On 19 October 1998 the applicants applied to the Diyarbakır Civil Court of General Jurisdiction, requesting exemption from paying the court fees. The court granted their request. 13. On 23 October 1998, after rectifying the procedural shortcomings in their first petition, the applicants lodged another case with the Diyarbakır Administrative Court. In their petition, they repeated their request for legal aid for the court fees. 14. On 17 November 1998 the Diyarbakır Administrative Court dismissed the applicants' request for legal aid. The court held that, since the applicants were represented by a lawyer, they could not be considered to be in need of legal aid. (The applicants had had a contingency fee arrangement with their lawyer.) In its decision, the court referred to the case-law of the Supreme Administrative Court and the provisions of the Civil Procedure Code. 15. On 1 December 1998 and 4 February 1999, the Diyarbakır Administrative Court notified the applicants that they were required to pay 180,000,000 Turkish liras (TRL) in respect of the court fees. 16. On 8 March 1999 the applicants lodged a petition with the administrative court requesting the annulment of the decision dated 17 November 1998. In their petition, they stated, inter alia, that they did not have sufficient means to pay the court fees and that the rejection of their request for legal aid was in violation of their right of access to a court. 17. On 16 April 1999 the Diyarbakır Administrative Court discontinued the proceedings because the applicants had not paid the necessary legal fees. 18. On 16 October 2001 the Supreme Administrative Court upheld the decision of 16 April 1999. 19. Article 31 of the Code of Administrative Procedure provides that when administrative court judges determine a legal aid request, they should apply the relevant provisions of the Code of Civil Procedure (Articles 465-472, below). 20. Article 465 states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her request. 21. According to Article 468, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a certificate attesting to his/her indigence; another certificate indicating whether or not the individual owns any property and an attestation regarding how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities. 22. Article 469 provides that decisions regarding legal aid are binding. 23. In November 1998, the minimum wage in force was 47,839,500 Turkish liras (approximately 158 US Dollars) a month.