PROCEDURE

The case originated in an application (no. 18753/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Tanay (“the applicant”), on 11 February 2004.

The applicant was represented by Mrs Fatma Kalsen Demirdaş, a lawyer practising in Tunceli. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged, in particular, that a factual error made by the Court of Cassation had infringed his right of access to court, in violation of Article 6 of the Convention.

On 20 November 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1956 and lives in Istanbul.

On 18 November 1997 the General Directorate of National Roads and Highways (hereinafter “the Directorate”) expropriated 4,309 square metres of the applicant’s land in Tunceli. The expropriation decision was communicated to the applicant on 16 August 2000. According to the domestic procedure, the applicant had thirty days, which began the day after the decision was communicated to him, to ask for an increase in the amount of compensation.

On 1 September 2000 a certain Mr Sezai Yıldız, who had been authorised by the applicant to appoint a lawyer for him, had a power of attorney drawn up at a notary public, appointing Mrs Fatma Kalsen Demirdaş as legal counsel to represent the applicant.

On 19 September 2000 the applicant, with the assistance of his lawyer Mrs Demirdaş, brought an action before the Tunceli Civil Court (hereinafter the “Tunceli Court”), seeking increased compensation. Mrs Demirdaş requested the court to accept the case despite the expiry of the statutory time-limit on 17 September 2000, as she had had health problems preventing her lodging the case earlier.

On 9 November 2000 the Tunceli Court asked the Forensic Medicine Institute in Ankara to clarify whether Mrs Demirdaş had had health problems at the relevant time and whether those problems had been of a nature to render it impossible for her to come to the court house and lodge the applicant’s case within the statutory time-limit.

On 22 May 2001 the Erzurum branch of the Forensic Medicine Institute forwarded to the Tunceli Court a number of medical reports, confirming that Mrs Demirtaş had been ill between 23 August 2000 and 17 September 2000 and had thus been unable to lodge the case within the statutory time-limit.

The Tunceli Court accepted the medical report and began examining the merits of the case. In the course of the proceedings it had regard to the zone plan, the expropriation documentation, two principal and two additional expert reports, and awarded the applicant additional compensation on 31 May 2001. The Directorate appealed.

On 3 March 2003 the Court of Cassation quashed the decision, quoting the applicant’s name, instead of that of his representative, as the person who had been ill. The Court of Cassation stated that the applicant had given a power of attorney to Fatma Kalsen Demirdaş so that, even if he had been ill, Mrs Kalsen Demirdaş could have lodged the claim on his behalf within the statutory time-limit. The Court of Cassation consequently held that the case had been time-barred on 17 September 2000.

In an application for rectification Mrs Demirdaş argued that it was she who had been ill, not her client. The Court of Cassation had therefore made a factual error which should be rectified.

On 12 May 2003, the Court of Cassation held that “amending the factual error would not affect the outcome”, and dismissed the rectification request.

On 4 July 2003 the Tunceli Court concurred with the Court of Cassation’s decision and dismissed the case. On 13 November 2003 the Court of Cassation upheld the final ruling.