CASE OF YARGI v. TURKEY

SECOND SECTION

CASE OF YARGI v. TURKEY

(Application no. 22684/10)

JUDGMENT
 

STRASBOURG

27 April 2021

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

In the case of Yargı 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. 22684/10) 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 İsmet Yargı (“the applicant”), on 30 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 1965 and lives in Batman. He was represented by Mr A. Çakan and Mr A.Ş. Deniz, 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 was 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).Compensation proceedings brought by the applicantFirst set of proceedings

8.  On 8 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”). He requested a total of 6,000 Turkish liras (TRY) for the depreciation of the value of his property after the explosion and for his loss of rental income from the date of the incident, reserving his right to increase those claims.

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

10.  On 23 June 2006 the experts reported their findings. They estimated that the value of the applicant’s property had diminished by 50 %, corresponding to TRY 70,932 (approximately 33,440 euros (EUR) at the material time). Furthermore, the applicant’s loss of rental income was calculated at TRY 3,350 (approximately EUR 1,580 at the material time).

11.  At a hearing on 20 October 2006 the applicant explained that TRY 3,000 of his initial claim concerned the depreciation of the value of his property and that the remaining part of TRY 3,000 concerned his loss of rental income.

12.  On the same date the Batman Civil Court allowed the applicant’s claims against Tüpraş. Relying on the report of 23 June 2006 and considering itself bound by the applicant’s claim, it awarded him the full amount claimed, namely TRY 3,000 under each head.

13.  The following account of the first set of proceedings is based on the Government’s submissions dated 31 July and 17 November 2017, which remained undisputed by the applicant.

14.  On 18 March 2008, following an appeal by Tüpraş, the Court of Cassation quashed the judgment of 20 October 2006, holding in particular that the expert report mentioned above had not been adequate.

15.  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.

16.  On an unspecified date the experts reported their findings. They assessed the depreciation of the value of the applicant’s property at TRY 44,691.36 and his loss of rental income at TRY 4,950.

17.  On an unspecified date the Batman Civil Court, considering itself bound by the applicant’s claim, awarded him a total of TRY 6,000 under both heads.

18.  On 11 February 2010 the Court of Cassation upheld that judgment.Second set of proceedings

19.  Meanwhile, on 10 November 2006, the applicant brought an additional action before the Batman Civil Court against Tüpraş. He requested a further amount of TRY 68,282 (approximately EUR 36,710 at the material time), corresponding to the total amount of the damage as calculated by the report of 23 June 2006 minus his initial claim of TRY 6,000 (see paragraphs 8 and 10 above).

20.  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 21 March 2005 (sic) 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.

21.  On 23 March 2009 the Court of Cassation dismissed the applicant’s appeal against that judgment.

22.  On 15 October 2009 it also dismissed the applicant’s rectification request.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

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

24.  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.

25.  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.

26.  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.

27.  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).

28.  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 (...)”

29.  Section 377 of the CCP 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

30.  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

31.  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

32.  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

33.  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.

34.  The applicant 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. He further claimed that he could not be expected to have known, at the outset of the proceedings, the nature and the amount of the damage he had suffered, which required an expert examination.

35.  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.

36.  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.

37.  The Government further stressed that the applicant had lodged his first action within the prescribed time-limit but that he had failed to bring his additional action within that period.

(b)   The Court’s assessment

38.  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).

39.  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 27 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).

40.  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 depreciation of the value of his property after the explosion 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 and his loss of rental income 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.

41.  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 23 June 2006, that is more than one year and a month after the applicant had brought the initial proceedings, by which time the time-limit for increasing the initial claim had already expired.

42.  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 and his loss of rental income 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.

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 his claim should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

45.  The applicant also complained in his observations submitted to the Court on 12 October 2017 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.

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 damage he had sustained 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 his pecuniary damage arising from that incident, 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 EUR 51,580 in respect of pecuniary damage, to compensate the damage he had sustained as a result of the explosion at issue, and EUR 50,000 in respect of non-pecuniary damage. He also claimed EUR 5,800 for lawyer’s fees and EUR 29 for 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 fifty-eight 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 29 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 22 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 1,000 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 his pecuniary damage 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 1,000 (one 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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