SECOND SECTION
CASE OF NEZİHE KAYMAZ v. TURKEY
(Application no. 12021/06)
JUDGMENT
STRASBOURG
31 July 2012
This judgment is final but it may be subject to editorial revision.
In the case of Nezihe Kaymaz v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 10 July 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12021/06) 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, Ms Nezihe Kaymaz (“the applicant”), on 24 March 2006.
2. The applicant was represented by Mr M. Şimşek, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3. On 2 November 2010 the application was communicated to the Government.
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1968 and lives in İzmir.
6. On 5 December 1994 the applicant was exposed to an electric shock from the power grid which was placed on the balcony of her house.
7. On 17 November 1995 she introduced a judicial proceeding before the Uşak Civil Court for damages. In the course of the proceedings the Civil Court requested six expert reports on the partition of liability which were concluded by different experts between 23 October 1998 and 25 December 1999.
8. On 2 March 2000, the Uşak Civil Court decided on the case in favour of the applicant.
9. On 4 December 2000 the Court of Cassation quashed the decision.
10. After the decision was quashed by the Court of Cassation, the Forensics Medicine Institute concluded a new report with a higher rate of working capacity loss. Upon the new rate two more expert reports were concluded between 28 January 2001 and 15 January 2003.
11. On 1 July 2003 the Uşak Civil Court decided in favour of the applicant.
12. On 21 April 2004 the Court of Cassation quashed the decision.
13. On 18 January 2005 the Uşak Civil Court decided on the case and partially awarded the request of the applicant.
14. On 26 September the Court of Cassation upheld that decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
16. The Government contested that argument.
17. The period to be taken into consideration began on 17 November 1995 and ended on 26 September 2005 with the decision of the Court of Cassation. It thus lasted nine years and nine months for two levels of jurisdiction.
A. Admissibility
18. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009).
20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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.”
A. Damage
22. The applicant claimed 15,000 euros (EUR) in respect of pecuniary and EUR 35,000 in respect of non-pecuniary damage.
23. The Government contested the claim as it was excessive and unsubstantiated maintaining that the applicant had contributed to the prolongation of the proceedings by its own acts.
24. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
25. The applicant also claimed EUR 4,608 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. In order to establish her claim she submitted to the Court the minimum wage tariff of İzmir bar association for lawyer’s fee and a copy of a shuttle company ticket for travel expenses, the total amount of which is EUR 8.
26. The Government contested the claim. No sufficient documents were produced by the applicant to indicate the real amount of costs and expenses she claims to have spent.
27. As for costs and expenses, the Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
28. In the present case, regard being had to the limited documentation submitted to the Court and the above criteria, the Court rejects the claim for costs and expenses.
C. Default interest
29. 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
1. Declares the complaints under Articles 6 § 1 of the Convention concerning the length of proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy