GÖZKESER GIDA LTD. ŞTİ. AND ALTUN KARDEŞLER LTD. ŞTİ v. TURKEY

SECOND SECTION

DECISION

Applications nos. 17860/10 and 57001/10
GÖZKESER GIDA LTD. ŞTİ. against Turkey
and ALTUN KARDEŞLER LTD. ŞTİ. against Turkey

The European Court of Human Rights (Second Section), sitting on 30 March 2021 as a Committee composed of:

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

Having regard to the above applications lodged on 8 March 2010 and 31 August 2010 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The list of the applicants and their representatives is set out in the appended table.

2.  The Turkish Government (“the Government”) were represented by their Agent.The circumstances of the case

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

4.  At the time of the events giving rise to the present applications, the applicant companies were using two business premises 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”).

5.  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 the businesses of the applicant companies.

6.  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).Declaratory actions brought by the applicants

7.  On 7 May 2004 the applicant companies brought declaratory actions to establish the damage that they had suffered as a result of the explosion.

8.  In a report dated 24 May 2004 and another undated report prepared by court-appointed experts, the first applicant’s damage (application no. 17860/10) was assessed as follows:

(i)  179,000 United States dollars (USD) in respect of the business equipment in the property;

(ii)  52,425 Turkish liras (TRY) in respect of the goods, furniture and appliances.

9.  In an undated report, the second applicant’s damage (application no. 57001/10) in respect of the goods, furniture and appliances was assessed at TRY 70,211.First set of proceedings brought by the applicants

10.  On 9 September 2004 the applicant companies brought actions for compensation against both Tüpraş and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court”). Relying on the aforementioned declaratory actions, the applicants requested respectively TRY 10,000 and TRY 5,000 for the damage they had suffered as a result of the explosion and the ensuing fire. They also reserved their right to increase their claims.

11.  On 21 July 2006 the Batman Civil Court allowed the second applicant’s claims against Tüpraş. Considering itself bound by the applicant’s claims, the court awarded the applicant the full amount it had claimed. The court also reserved the applicant’s right to further compensation. On 30 January 2007 the Court of Cassation upheld that judgment.

12.  On 20 October 2006 the Batman Civil Court allowed the first applicant’s claims against Tüpraş. It also reserved the applicant’s right to further compensation. On 9 October 2007, following an appeal by Tüpraş, the Court of Cassation quashed that judgment.

13.  The first applicant’s case was thus remitted to the Batman Civil Court. On 22 May 2009 the court allowed the first applicant’s claims against Tüpraş. Considering itself bound by the applicant’s claims, the court awarded the applicant the full amount it had claimed. On 16 February 2010 the Court of Cassation upheld that judgment.Second set of proceedings brought by the applicants

(a)   The proceedings concerning the first applicant

14.  On 15 March 2007, the first applicant brought an additional action before the Batman Civil Court against Tüpraş. Relying on the expert reports prepared in the declaratory action it had brought (see paragraph 8 above), it requested a further amount of TRY 298,395 for the damage it had sustained as a result of the explosion.

15.  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 9 September 2004 an action for compensation in relation to the explosion in question, the court held that it must have become aware of the act in question and the party responsible by that date at the latest. Accordingly, it found that the additional action had not been brought within the applicable one-year time-limit. The court further stated that although criminal charges had also been brought against Tüpraş executives in connection with the explosion in question, those charges had not concerned the offences mentioned in Article 465 of the former Criminal Code which would trigger the application of the longer criminal prescription period to the civil proceedings at issue (see paragraphs 26 to 28 below).

16.  On 7 July 2009 the Court of Cassation dismissed the applicant’s appeal against that judgment.

17.  On 29 December 2009 it also dismissed the applicant’s rectification request.

(b)   The proceedings concerning the second applicant

18.  On 13 September 2006 the second applicant brought an additional action before the Batman Civil Court against Tüpraş. Relying on the expert report prepared in the declaratory action (see paragraph 9 above), it requested a further amount of TRY 65,211 in respect of the damage to its goods, furniture and appliances. It also requested TRY 40,000 in respect of its alleged commercial loss.

19.  On 3 October 2007 the applicant withdrew (atiye bırakmak) its claims in respect of the alleged commercial loss.

20.  On the same date the Batman Civil Court allowed the applicant’s claims in respect of the damage to the goods, furniture and appliances and awarded the applicant company the full amount it had requested under that head. It also decided that there was no need to rule on the remainder of the applicant’s claims which had been withdrawn.

21.  On 25 March 2008, following an appeal by Tüpraş, the Court of Cassation quashed that judgment. It held that the applicant’s claim concerned a tortious act under Article 60 § 1 of the Code of Obligations. It further stated that lodging a partial action (kısmi dava) would not interrupt the running of the applicable statutory time-limit in respect of an eventual request for further compensation. The Court of Cassation noted in this connection that the applicant had already brought an action for compensation on the basis of the expert report prepared in the declaratory action. It further stated that the full amount mentioned in that report could have been claimed in the first action lodged by the applicant. It thus held that the applicant must have become aware of the damage in question and the party responsible on the date of the first action, namely 9 September 2004, at the latest. Accordingly, it found that the additional action had not been brought within the applicable one-year time‑limit. The Court of Cassation also stated that since the issue did not fall within the scope of any of the exceptional provisions, the longer criminal prescription period within the meaning of Article 60 § 2 of the former Code of Obligations could not apply to the proceedings against Tüpraş, which was not a natural person (see paragraphs 26 to 28 below).

22.  On 18 November 2008 the Court of Cassation dismissed the applicant’s rectification request.

23.  On 13 February 2009 the Batman Civil Court delivered a judgment in line with the quashing decision of the Court of Cassation and dismissed the applicant’s claims for having become time‑barred.

24.  On 22 December 2009 the Court of Cassation dismissed the applicant’s appeal against that judgment. On 16 June 2010 it also dismissed the applicant’s rectification request.Relevant domestic law and practice

25.  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.

26.  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.

27.  Under Article 465 of the former Criminal Code (Law no. 765), employers and companies were financially liable for the damage resulting from the offences set out in Articles 455 and 459 of the same Code if such offences were committed by their employees in the performance of their duties.

28.  In a judgment of 27 June 2001 (E. 2001/4-472 K. 2001/547) cited by the Government, the Joint Civil Chambers of the Court of Cassation held that it was a well‑established principle that the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply only to the civil proceedings brought against those persons who had committed an offence or had participated in that offence; the longer prescription period could therefore not apply to the civil proceedings brought against the employers or those who were merely financially liable for the offences at issue. The Joint Civil Chambers further noted that Article 465 of the former Criminal Code provided an exception to that principle. Thus, where a civil claim was brought against an employer or a company for the damage resulting from the offences mentioned in Article 465 of the Criminal Code and committed by its employees, the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply to that claim.

THE LAW

29.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Complaints under Article 6 § 1 of the Convention

30.  The applicants complained that they had been denied a fair trial on account of the dismissal of their additional actions as being out of time pursuant to Article 60 § 1 of the former Code of Obligations. They further complained that the longer prescription period envisaged under Article 60 § 2 of the former Code of Obligations should have applied in the proceedings at issue. They also alleged that the domestic courts’ decisions dismissing their additional actions had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion.

31.  The applicants further maintained that the decisions of the Court of Cassation dismissing their appeals and rectification requests had lacked reasoning.

32.  In their observations dated 14 October 2017, the applicants also complained that their claims should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.The parties’ submissions

33.  The applicants maintained 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 applicants argued that they could not be expected to have known with certainty the identity of the wrongdoer and the amount of the damage they had suffered at the outset of the proceedings. They further claimed that they 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 their initial claims. According to them, the decisions dismissing their additional actions had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion.

35.  The applicants also claimed that the domestic courts’ decisions rendered in the first set of proceedings had reserved their right to further compensation. They thus argued that the decisions rendered in the second set of proceedings had contradicted those rendered in the first set of proceedings.

36.  The applicants further claimed that the longer prescription period envisaged under Article 60 § of the former Code of Obligations should have applied in the proceedings at issue.

37.  The Government argued that the second applicant had failed to comply with the six-month time-limit set out in Article 35 § 1 of the Convention. They claimed in this regard that the “final decision” for the purposes of that provision had been that delivered by the Batman Civil Court on 13 February 2009.

38.  The Government further 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 applicants’ complaint in this regard was of a fourth-instance nature.

39.  The Government also stressed that the applicants had lodged declaratory actions within the prescribed time-limit but that they had brought their first actions for compensation 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.

40.  As for the applicants’ complaint concerning Article 60 § 2 of the former Code of Obligations, the Government argued that the domestic courts’ conclusion in that regard was in line with the case-law of the Court of Cassation (see paragraph 28 above).The Court’s assessment

(a)   Compliance with the six-month time-limit

41.  The Court notes that the applicants’ additional complaint with regard to the alleged “continuing” damage at issue (see paragraph 32 above) concerns the proceedings which were finalised in 2009 and 2010. Furthermore, that complaint does not constitute an elaboration on the applicants’ original complaints to the Court, but raises a new issue. Accordingly, the Court must reject it pursuant to Article 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time-limit (see, mutatis mutandis, Kurşun, v. Turkey, no. 22677/10, § 80, 30 October 2018).

42.  As for the Government’s preliminary objection concerning the second applicant (see paragraph 37 above), the Court does not find necessary to examine that objection, since the remainder of the applicants’ complaints are inadmissible for the reasons set out below.

(b)   Complaints concerning the dismissal of the additional actions

43.  The Court deems it appropriate to examine the applicants’ complaints 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).

44.  The Court notes that the applicants’ first complaints relate to the determination of the starting point of the time-limit set out in Article 60 § 1 of the former Code of Obligations, under which 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. The applicants argued in this connection that they could not be expected to have acquired the requisite knowledge of the tortfeasor and the damage on the date of the first actions brought by them.

45.  The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of procedural rules (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII). Consequently, the Court’s task is essentially to determine whether, in the present case, the domestic courts applied the relevant one-year time-limit in a foreseeable and reasonable manner, without constituting a bar to the applicants’ effective access to court (see Kurşun, cited above, § 95).

46.  Turning to the facts of the present case, the Court observes that the domestic courts held in the second set of proceedings that the applicants’ claims had become time‑barred. They considered in this connection that the applicants had had the requisite knowledge on the date of the first actions at the latest (see paragraphs 15, 21, and 23 above).

47.  As regards the applicants’ arguments concerning the lack of sufficient knowledge of the identity of the wrongdoer, the Court observes that the party responsible for the incident, namely Tüpraş, was one of the two parties against whom the applicants lodged their first actions (see paragraph 10 above). Therefore, as the applicants had availed themselves of the opportunity to lodge a compensation claim against Tüpraş on 9 September 2004, the domestic courts’ conclusion that the applicants had become aware of the party responsible on the date at the latest does not appear to be overly formalistic in the circumstances of the present case (see, a contrario, Kurşun, cited above, § 101).

48.  As for the requisite knowledge of the damage sustained, the Court observes that, prior to bringing their compensation claims before the Batman Civil Court, the applicants had lodged declaratory actions whereby the damage they had sustained was assessed by court‑appointed experts (see paragraphs 7 to 9 above). As the Court of Cassation noted in its decision of 25 March 2008 (see paragraph 21 above), the full amounts mentioned in those reports could have been claimed in the first actions. The applicants did not, however, provide any explanation as to why they did not claim those amounts in the first actions but in the additional actions that they lodged two years later. An explanation by the applicants in this regard was all the more necessary bearing in mind that the claims made in the second actions were not based on any assessment made during the first actions, but on the experts reports prepared during the declaratory actions that preceded the first actions.

49.  The Court further notes that, while the applicants claimed that the domestic courts’ decisions rendered in the first set of proceedings had reserved their right to further compensation (see paragraphs 11 and 12 above), the relevant decisions had done no more than acknowledge that the applicants had reserved their right to increase their claims. They may not, therefore, be understood as exempting the applicants from having to comply with the relevant procedural rules in respect of any further claims. Besides, there is nothing in the case files to indicate that such reservation would interrupt the running of statutory time-limits in respect of an eventual request for further compensation. Thus, the applicants’ claim that the decisions rendered in the second set of proceedings had contradicted those rendered in the first set of proceedings appears to be unsubstantiated. Similarly, the Court does not find any contradiction between the decisions rendered in the second set of proceedings and the other decisions referred to by the applicants.

50.  Lastly, inasmuch as the applicants complained about the alleged failure of the domestic courts to apply the special time-limit provided for in Article 60 § 2 of the former Code of Obligations in the compensation proceedings, the Court observes, as indicated by the Government, that the domestic courts’ conclusion in that regard was in line with the case-law of the Joint Civil Chambers of the Court of Cassation (see paragraphs 26 to 28 above). Indeed, it appears from the decisions at issue that Article 60 § 2 of the former Code of Obligations was not applied in the applicants’ cases, since the criminal charges brought against the Tüpraş executives did not concern the offences mentioned in Article 465 of the former Criminal Code which could exceptionally trigger the application of the longer criminal prescription period in respect of civil claims against Tüpraş (see paragraphs 15, 21 and 23 above). In the absence of any evidence to the contrary, the Court sees no reason to call into question the assessment made by the domestic courts in that regard, which does not appear to be arbitrary or unduly formalistic.

51.  In view of the above, and having regard also to its limited role as to the interpretation and application of domestic law, the Court considers that the dismissal of the applicants’ additional actions as time-barred cannot be considered as unforeseeable or unreasonable in the circumstances of the present cases.

52.  It follows that this part of the applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(c)   Other complaint under Article 6 § 1 of the Convention

53.  The applicants further complained that the decisions of the Court of Cassation dismissing their appeals and rectification requests had lacked reasoning.

54.  The Court recalls that insofar as appeal instances are concerned, Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision by detailed reasons (Kabasakal and Atar v. Turkey (dec.), nos. 70084/01 and 70085/01, 1 July 2003, and Feryadi Şahin v. Turkey, no. 33279/05, § 22, 13 September 2011).

55.  It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaints under Article 1 of Protocol No. 1 to the Convention

56.  The applicants complained that the State authorities had failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect their property rights, which were violated on account of the damages that they had suffered following the explosion of 3 May 2004. They further maintained that they had not been indemnified for their damage. The second applicant also complained about the prohibition of construction put in place in the area at issue.

57.  The applicants 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).

58.  The Government argued, inter alia, that the applicants’ complaints under this head should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. They argued in this connection that the applicants had failed to lodge the compensation proceedings at issue within the applicable time-limit and to bring an administrative action against the relevant State authorities.

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

60.  To the extent that the applicants complained of their inability to receive redress for their damage, the Court observes that by not having complied with the relevant time‑limit, the applicants failed to give the domestic authorities an opportunity to examine the merits of their complaints concerning the damage at issue. Therefore, taking also into account its conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 52 above), the Court considers that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

61.  As regards the applicants’ complaint that they had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings initiated after the incident, 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). The Court sees no reason to come to a different conclusion in the present case. It follows that this part of the applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

62.  As for the applicants’ remaining complaints under this head, the Court notes, as also indicated by the Government, that the applicants have not aired them before the relevant domestic authorities or courts before lodging their applications with the Court. It follows that those complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies (see, for a similar finding, Kurşun, cited above, § 132).

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 29 April 2021.

              {signature_p_2}

Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident

APPENDIX

No.

Application no.

Applicant

Represented by

1

17860/10

Gözkeser Gıda İmalatı Tekstil Nakliyat Sanayi Ticaret Limited Şirketi

M.M. Erken

Mr S. Özevin

Mr E. Erken

2

57001/10

Altun Kardeşler Otomotiv Nakliye Gıda Petrol ve Dayanıklı Tüketim Malları Sanayi ve Ticaret Limited Şirketi

M.M. Erken

Mr E. Erken

 

Full & Egal Universal Law Academy