CASE OF DOĞU v. TURKEY

SECOND SECTION

CASE OF DOĞU v. TURKEY

(Application no. 16312/10)

JUDGMENT
 

STRASBOURG

27 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Doğu v. Turkey,

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

Valeriu Griţco, President,
Branko Lubarda,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 16312/10) 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 Mahmut Doğu (“the applicant”), on 8 March 2010;

the decision to give notice to the Turkish Government (“the Government”) of the application;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 30 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case mainly concerns the applicant’s inability to access the civil courts in order to request additional compensation for the pecuniary damages he suffered as a result of an explosion.

THE FACTS

2.  The applicant was born in 1947 and lives in Batman. He was represented by Mr M.M. Erken and Mr E. Erken, lawyers practising in Batman.

3.  The Government were represented by their Agent.

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

5.  The applicant is the owner of a property in the Toptancılar Sitesi area of Batman, which is located in close proximity to the Tüpraş Batman Oil Refinery (“Tüpraş Refinery” or “Tüpraş”, a State-owned enterprise until its privatisation in 2005), and to an oil storage and supply facility run by the Ministry of Defence (hereinafter “ANT”).

6.  On 3 May 2004 a large underground explosion took place in Toptancılar Sitesi, which resulted in three deaths and many injuries. The explosion and ensuing fire also damaged many properties in the vicinity, including that of the applicant.

7.  Further background information on the explosion, as well as the ensuing administrative and judicial developments, have been outlined in the case of Kurşun v. Turkey (no. 22677/10, §§ 7-45, 30 October 2018).

8.  At an unspecified date, the tenant occupying the applicant’s property brought a declaratory action to establish the damage he had suffered as a result of the explosion, as well as the structural damage sustained by the property in question. In a report dated 24 May 2004 prepared by a court‑appointed expert, the structural damage sustained by the applicant’s property as a result of the explosion was noted to be 68,341.10 Turkish liras (TRY).Compensation proceedings brought by the applicantFirst set of proceedings

9.  On 28 April 2005 the applicant brought an action for compensation against Tüpraş and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court”). Relying on the aforementioned expert report dated 24 May 2004 (see paragraph 8 above), the applicant claimed TRY 68,341.10 in compensation for the structural damage caused to his property by the explosion. He also claimed TRY 10,000 for the depreciation of the value of his property and TRY 6,000 for his loss of rental income from the date of the explosion, reserving his right to increase those claims.

10.  The Batman Civil Court ordered an expert report to determine the extent of the applicant’s damage.

11.  On 11 December 2006 the experts reported their findings. As regards the structural damage, they agreed with the conclusions of the report dated 24 May 2004 (see paragraph 8 above). As to the remaining claims for damages, they assessed the depreciation of the value of the property in question at TRY 67,411.20 and the applicant’s loss of rental income at TRY 3,550.

12.  On 7 March 2007 the Batman Civil Court allowed in part the applicant’s claims against Tüpraş. Relying on the expert reports of 24 May 2004 and 11 December 2006, it awarded the applicant TRY 68,341.10 in respect of the structural damage. As regards the depreciation of the value of the applicant’s property, it awarded him TRY 10,000, considering itself bound by his claim. However, it rejected his claims concerning a loss of rental income for lack of sufficient evidence.

13.  On 13 January 2009, following an appeal by the applicant and Tüpraş, the Court of Cassation quashed the judgment, holding in particular that the expert reports mentioned above had not been adequate.

14.  The case was thus remitted to the Batman Civil Court, which subsequently ordered a fresh expert report to determine the extent of the applicant’s damage.

15.  On 29 March 2010 the experts reported their findings. They assessed the property’s structural damage at TRY 41,149.51. They also estimated that the value of the applicant’s property had diminished by 35 %, corresponding to TRY 40,036 (approximately 19,350 euros (EUR) at the material time). Furthermore, the applicant’s loss of rental income was calculated at TRY 5,325.

16.  On 13 May 2010 the Batman Civil Court allowed in part the applicant’s claims against Tüpraş. As regards the structural damage, it adjusted the amount calculated by the experts taking into account wear and tear of the property since its construction, and ordered Tüpraş to pay the applicant TRY 40,000 in this respect. It further held that the applicant’s property had lost 35 % of its value, as indicated by the experts. However, considering itself bound by the amount claimed by the applicant, it awarded him TRY 10,000 (approximately EUR 5,165 at the material time) under this head. It further awarded him TRY 5,325 in respect of loss of rental income.

17.  On 7 October 2010 the Court of Cassation upheld that judgment. On 20 January 2011 it dismissed the rectification request made by Tüpraş.Second set of proceedings

18.  Meanwhile, on 7 December 2007, the applicant brought an additional action before the Batman Civil Court against Tüpraş and requested a further amount of TRY 38,000 (approximately EUR 22,070 at the material time) in respect of the depreciation of the value of his property after the explosion, reserving his right to increase his claim. The applicant claimed in particular that, according to the report of 11 December 2006 (see paragraph 11 above), the depreciation of the value of his property was estimated at TRY 67,411.20 and that the amount he had initially claimed under this head was TRY 10,000.

19.  On 16 May 2008 the Batman Civil Court rejected the applicant’s request for additional compensation as time-barred. It held that the applicant’s claim concerned a tortious act under Article 60 § 1 of the Code of Obligations, which required compensation claims to be introduced within one year of the date on which the victim became aware of the damage and the party responsible for the damage. Bearing in mind that the applicant had already brought on 28 April 2005 an action for compensation in relation to the explosion in question, the court held that he must have become aware of the act in question and the party responsible by that date at the latest. Accordingly, the additional action had not been brought within the applicable one-year time-limit.

20.  On 28 April 2009 the Court of Cassation dismissed the applicant’s appeal against that judgment.

21.  On 16 September 2009 it also dismissed the applicant’s rectification request.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

22.  The relevant legal framework and practice are partly set out in the case of Kurşun (cited above, §§ 61-69).

23.  Under Article 60 § 1 of the Code of Obligations (Law no. 818) in force at the material time (“the former Code of Obligations”), an action for compensation for damage would become time-barred one year after the date on which the damage and the identity of the author thereof became known (ıttıla) or, at the latest, ten years after the commission of the act that had caused the damage.

24.  The same provision provided in its second paragraph that where the compensation claim originated in an act which also constituted an offence under criminal law that was subject to a longer prescription period, then that longer period would also apply in the action for compensation.

25.  Under Article 74 of the Code of Civil Procedure (Law no.1086) in force at the material time, the civil courts were bound by the claims of the parties and might not award a higher amount than requested.

26.  In Turkish civil law, as in force at the material time, there were, however, two ways of increasing an initial claim. The first was to bring an “additional action” (ek dava) in relation to the same dispute (see, Okçu v. Turkey, no. 39515/03, § 26, 21 July 2009). The second was “amendment” (ıslah), which was a procedural motion that allowed claimants to increase their original claims within the same proceedings (ibidem, § 25). In order to use either of those procedures, claimants were required to reserve their right to further compensation at the time of lodging their initial action. However, such reservation would not interrupt the running of statutory time-limits in respect of an eventual request for further compensation, which had thus to be made within the same time-limit as the original action (see, Akın and Others v. Turkey (dec.), no. 27747/02, §§ 18-20, 29 January 2008).

27.  Section 375 § 1 (i) of the Code of Civil Procedure (“the CCP”) reads as follows:

“1. The reopening of proceedings may be requested for the following reasons:

(...)

(i) Where the European Court of Human Rights has issued a final judgment finding that the [final domestic] decision has been made in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its additional protocols (...)”

28.  Section 377 of the CCP further provides that the time-limit for reopening of proceedings on the ground stipulated in section 375 § 1 (i) is three months from the date of notification of the final judgment of the European Court of Human Rights and in any case ten years from the date when the domestic court’s decision that is the subject matter of the request for reopening becomes final.

THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

29.  The applicant complained of various breaches of Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Dismissal of the additional action for compensation brought by the applicant

30.  The applicant complained that he had been denied a fair trial on account of the dismissal of his additional compensation claim as being out of time, which had been based on an inaccurate interpretation of Article 60 § 1 of the former Code of Obligations, as well as an erroneous assessment of the facts.Admissibility

31.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   The parties’ submissions

32.  The applicant explained that under Article 60 § 1 of the former Code of Obligations, an action for damages had to be brought within one year of both the identity of the wrongdoer and the damage sustained becoming known to the victim. He argued in this connection that the exact extent of his damage and the identity of those responsible had not been known to him for some time after the incident.

33.  The applicant further contended that the mere act of bringing an action could not trigger the time-limit at issue, as it did not necessarily prove that the claimant knew the identity of the wrongdoer with certainty on that date. As the identity of the wrongdoer and the amount of the damage had not been known to him at the date on which he had brought the first action for compensation, he had initially claimed a small amount in order to avoid paying higher court fees and the legal fees of the opposing party in the event of the dismissal of his initial claim.

34.  The Government maintained that it fell on the national judges to interpret the application of domestic law. In the absence of any arbitrariness in the interpretation of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations by the relevant domestic courts, the applicant’s complaint in this regard was of a fourth-instance nature.

35.  The Government added that the damage and the identity of the tortfeasor had become well known through the media soon after the incident, and that some property owners in the area had thus been able to bring cases against Tüpraş within the prescribed time-limit. Moreover, according to the Government, the Court of Cassation had stated that the fact that the tortfeasor had been identifiable had been sufficient to bring an action.

36.  The Government further alleged that the applicant had lodged a declaratory action against Tüpraş within the prescribed time-limit but that he had brought his first action for insignificant amounts. Consequently, it could have not been claimed that the applicant had not known the act that had caused the damage or the tortfeasor.

(b)   The Court’s assessment

37.  The Court deems it appropriate to examine the applicant’s complaint from the perspective of the right of access to a court, as guaranteed by Article 6 § 1 of the Convention (see Kurşun, cited above, § 93). It refers in this connection to the recapitulation of it case-law concerning access to court in Zubac v. Croatia ([GC] no. 40160/12, §§ 76-79, 5 April 2018). It further reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation and application of procedural rules, such as time-limits for filing documents or lodging appeals. The Court’s role is limited to verifying compatibility with the Convention of the effects of such an interpretation (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 VIII). Furthermore, the Court must make its assessment in each case in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97 and 9 others, § 36, ECHR 2000‑I).

38.  The Court observes that according to the time-limit rule under Article 60 § 1 of the former Code of Obligations, all tort claims had to be brought within one year of the damage and the identity of those responsible for that damage becoming known to the victim of the civil wrong. It moreover observes that the domestic law in force at the material time afforded claimants two options to increase their initial claims, namely the amendment and additional action procedures (see paragraph 26 above). The Court also notes, however, that such request to increase an initial claim had to be made within the same one-year time-limit provided under Article 60 § 1 of the former Code of Obligations for the lodging of the initial claim (ibidem).

39.  The Court notes that in the instant case, the applicant brought his initial claims for compensation within the relevant time-limit and requested compensation for the structural damage caused to his property by the explosion, for the depreciation of the value of his property and for his loss of rental income. However, the assessment made by the court-appointed experts during the course of those initial proceedings demonstrated that the depreciation in the value of the applicant’s property was higher than that claimed by him. The applicant accordingly sought to increase that claim in the light of the experts’ assessment. The domestic courts, however, rejected that claim on the ground that it had not been lodged within the one-year statutory time-limit, which had started to run from the date on which the applicant had brought his initial action.

40.  The Court is in no position to determine when the relevant time-limit should have started to run, as it falls on national courts to decide questions of such nature. It notes, however, that in the particular circumstances of the present case, the application of that time-limit rule has had the effect of depriving the applicant of the opportunity to claim his damage in full. This is because the true extent of the damage in question was only brought to light through the assessments made by the experts during the initial compensation proceedings, and the relevant expert report was issued only on 11 December 2006, that is almost one year and eight months after the applicant had brought the initial proceedings, by which time the time-limit for increasing the initial claim had already expired.

41.  The Court stresses in this connection that the determination of the damage at issue, namely the depreciation of the value of the applicant’s property following a complex environmental pollution phenomenon and the resulting explosion (see Kurşun, cited above, §§ 19 and 102), involved technical considerations and therefore required a certain expertise. It is for that reason that the Batman Civil Court had to order two separate expert reports in order to be able to determine the extent of the applicant’s damage, and the differences in the experts’ findings suggest that even the court‑appointed experts encountered some difficulties in establishing the exact amount of that damage. Having thus regard to the complexity of the matter, the Court considers that the applicant could not be expected to have known the full extent of his damage, which was only brought to light through the assessments made by the experts during the initial compensation proceedings, at the outset of those proceedings (see, mutatis mutandis, Fatma Nur Erten and Adnan Erten v. Turkey, no. 14674/11, §§ 29‑33, 25 November 2014, and Mikail Tüzün v. Turkey, no. 42507/06, §§ 22-24, 27 November 2018, where the Court has also held, albeit in different contexts, that it would be unreasonable to expect an applicant to have known at the time of lodging his or her case the exact extent of the pecuniary damage sustained, or to require them to overestimate their claim deliberately and lodge a claim for a higher amount by paying higher court fees, which would result in a disproportionate limitation on the right of access to a court). The Court notes nevertheless that the application of the relevant time-limit rule on the present facts made it virtually impossible for the applicant to benefit from the expert opinion sought in the case and to increase his initial claims accordingly.

42.  While the Government have claimed that the applicant had initially requested an “insignificant amount” for the alleged decrease in the value of his property despite having brought a declaratory action beforehand to establish his damage, the Court notes that the relevant declaratory action was not brought by the applicant himself but by a third person, and that it did not concern the depreciation of the value of the property in question (see paragraph 8 above).

43.  In view of the above, the Court considers that the applicant’s right to increase his initial claim by way of an additional action had remained “theoretical and illusory” on the facts of the present case, and that the applicant was not able to claim redress for his full damage. There has accordingly been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention.Other complaints under Article 6 § 1 of the Convention

44.  The applicant complained under Article 6 § 1 of the Convention that the domestic court decisions had lacked reasoning, and had contradicted decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. He further maintained that, given that criminal charges had also been brought against Tüpraş officials in connection with the explosion at issue, the criminal prescription period applicable to those charges should have also applied in the corresponding civil proceedings as per Article 60 § 2 of the former Code of Obligations.

45.  The applicant also complained in his observations submitted to the Court on 13 October 2017 that his claim should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

46.  Having regard to its finding in paragraph 43 above, the Court considers it unnecessary to examine the admissibility or the merits of those complaints (see, mutatis mutandis, Kurşun, cited above, § 106).ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL no. 1 to THE CONVENTION

47.  The applicant complained under Article 1 of Protocol No. 1 to the Convention (i) that the State authorities had failed in their positive obligations to take the necessary precautions to avoid the explosion and the resulting damage to his property; (ii) that his additional action had been dismissed for having become time-barred despite the recognition of the depreciation of the value of his property by experts; and (iii) that the building restrictions imposed by the authorities in the aftermath of the explosion, which were still in force on account of the continuing leakage and risk of further explosions, had severely restricted the use of his property.

48.  The applicant further maintained under Article 13 of the Convention that the criminal proceedings initiated after the incident had not been effective and, in particular, had not complied with the criteria laid down by the Court in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004‑XII).

49.  The Government argued, inter alia, that the applicant’s complaints under this head should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies because he had failed to bring an administrative action against the relevant State authorities which he held responsible for the alleged infringement of his property rights.

50.  The applicant maintained his allegations and argued, in particular, that any actions brought against State authorities were doomed to fail in the circumstances.

51.  The Court considers that the applicant’s complaints under this head fall to be examined under Article 1 of Protocol No. 1 to the Convention alone (see, Kurşun, cited above, § 109).

52.  As regards the applicant’s complaint that he had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings, the Court recalls that it has already examined and declared inadmissible as manifestly ill-founded a similar complaint in the case of Kurşun (cited above, § 125), which concerns the same incident.

53.  The Court sees no reason to come to a different conclusion in the present case. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

54.  As to the applicant’s complaints concerning the direct responsibility of Tüpraş for the incident and his inability to obtain additional compensation from the company in respect of the depreciation of the value of his property, the Court finds it unnecessary to examine the admissibility or the merits of those particular complaints, taking into account the conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 43 above; see also, Kurşun, cited above, § 128).

55.  As for the remainder of the applicant’s complaints under Article 1 of Protocol No.1, the Court notes that it has already declared inadmissible similar complaints for non-exhaustion of domestic remedies because of the failure to bring an administrative action against the relevant public authorities (Kurşun, cited above, §§ 129-132).

56.  The Court sees no reason to depart from that finding in the present case. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

58.  The applicant claimed 20,740 EUR in respect of pecuniary damage, to compensate the depreciation of the value of his property minus the compensation he had already received, and EUR 40,000 in respect of non-pecuniary damage. He also claimed EUR 4,034 for court fees and other legal fees he was ordered to pay in the domestic proceedings, and EUR 6,551 for lawyer’s fees and other costs and expenses incurred before the domestic courts and the Court. In support of his claims he submitted a timesheet showing that his legal representative had carried out sixty hours’ legal work on the application submitted to the Court. The remaining expenses were not supported by any documents.

59.  The Government contested those claims, deeming them unsubstantiated and excessive. They added that, were the Court to find any breach of the Convention, the most appropriate way of remedying that breach would be to request the reopening of the compensation proceedings.

60.  The Court notes that where, as in the instant case, an individual has been the victim of a breach of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents, in principle an appropriate way of redressing the violation (see, Aksis and Others v. Turkey, no. 4529/06, § 64, 30 April 2019). Turning to the present case, the Court notes that section 377 of the CCP provides for a ten-year time-limit for an application to have the proceedings reopened, which starts running from the date when the impugned domestic court decision became final (see paragraph 28 above). In this connection, the Court observes that more than ten years have elapsed since the Court of Cassation’s final decision taken in the proceedings complained of (see paragraph 21 above). The Court, therefore, notes that the applicant may not be given leave to have the proceedings reopened, should he chooses to make such an application, on the grounds that his application has been lodged outside the ten-year time-limit provided for by section 377 of the CCP (see Aksis and Others, cited above, § 64, and Şamat v. Turkey, no. 29115/07, § 72, 21 January 2020).

61.  The Court further notes that while it cannot speculate as to what the outcome of the proceedings complained of would have been had the violation of Article 6 § 1 of the Convention not occurred, it does not find it unreasonable to regard the applicant as having been deprived of a real opportunity in so far as he was unable to have the merits of his additional compensation claims examined (see Aksis and Others, cited above, § 65). In addition, the Court considers that the applicant suffered some non‑pecuniary damage which is not sufficiently compensated for by the finding of a violation of the Convention.

62.  Therefore, taking into account the domestic law provisions which do not allow proceedings to be reopened after ten years from the date when the impugned decision became final and having regard to the nature of the violation found, the Court decides, on an equitable basis, to award the applicant an aggregate sum of EUR 7,000 under all heads of damage combined.

63.  As for the applicant’s costs and expenses, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads.

64.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 6 § 1 of the Convention concerning the infringement of the right of access to court admissible;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the infringement of the applicant’s right of access to a court;Holds that there is no need to examine the admissibility or the merits of the remainder of the complaints under Article 6 § 1 of the Convention;Holds that there is no need to examine the admissibility or the merits of the complaints under Article 1 of Protocol No. 1 to the Convention concerning the direct responsibility of Tüpraş for the incident, and the applicant’s inability to obtain additional compensation from Tüpraş in respect of the depreciation of the value of his property arising from that incident;Declares the remainder of the complaints under Article 1 of Protocol No. 1 to the Convention inadmissible;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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Hasan Bakırcı Valeriu Griţco
Deputy RegistrarPresident

 

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