Communicated on 12 December 2016
SECOND SECTION
Application no. 56681/09
Orhan GÜNLEMENÇ and Others against Turkey
and 32 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
The applications concern the explosion that took place on 3 May 2004 in the vicinity of the TÜPRAŞ Oil Refinery (“TÜPRAŞ”) in Batman and the pecuniary losses suffered by the property owners in the area, including the applicants, as a result of the explosion and the ensuing fire.
The main legal problem in the instant cases is the applicants’ inability to access the civil courts to claim compensation for their damages resulting from the explosion on account of the allegedly erroneous application of the time-limit rules, which issue falls to be examined under Article 6 § 1 of the Convention. The cases also raise an issue under Article 1 of Protocol No. 1 to the Convention in respect of the State authorities’ positive obligations to protect the applicants’ property rights.
QUESTIONS tO THE PARTIES
1. Did the applicants have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular;
a. Did the dismissal of the applicants’ compensation claims as being out of time violate their right of access to court, implicitly guaranteed by Article 6 § 1 of the Convention? Was the manner in which the national courts calculated the statutory limitation period in the applicants’ cases foreseeable and in compliance with the settled jurisprudence of the Court of Cassation regarding the application of Article 60 § 1 of the former Code of Obligations, particularly in view of the applicants’ arguments that (i) they had no way of ascertaining TÜPRAŞ’s liability for the oil leak prior to the Batman Civil Court of First Instance decision in case no. 2004/966 E.; and (ii) that the damage to their properties were still continuing on account of the ongoing oil leak?
b. In respect of the applicants who sought to increase their original compensation claims by way of an amendment (ıslah) or additional action (ek dava):
i. Did the applicants “know” (ıttıla), within the meaning of Article 60 § 1 of the former Code of Obligations, the identity of the party liable for the damage they had sustained at the time they brought their initial actions for compensation before the Batman Civil Court of First Instance, having regard to the fact that they had brought those actions against two different companies?
ii. Were the applicants in a position to reasonably assess the scope and extent of their damages prior to the submission of the court‑ordered expert reports during the initial compensation proceedings?
c. Did the applicants’ compensation claims qualify for an extended time‑limit envisaged under Article 60 § 2 of the former Code of Obligations? Could this issue be conclusively determined prior to the finalisation of the criminal proceedings brought against the TÜPRAŞ executives?
The parties are requested to submit sample decisions of the Court of Cassation regarding the interpretation and application of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations in circumstances involving damage to property, with examples explaining when a victim of a tortious act is considered to “know” (ıttıla) the identity of the “tortfeasor” (fail) and the damage sustained, and what “damage” means for the purposes of the relevant provision. They are also requested to indicate, again with examples from the domestic case-law, whether the act of bringing an action for compensation constitutes conclusive evidence that the requisite knowledge has been acquired.
The parties are further requested to submit the case files pertaining to the compensation proceedings initiated by the applicants before the Batman Civil Court of First-Instance, both in relation to the initial and the additional actions, where applicable, including the petitions lodged by the applicants with the first-instance and the appeal courts.
The parties are lastly requested to submit a copy of the case-files pertaining to cases nos. 2004/963 E. and 2006/499 E. concerning the compensation proceedings before the Batman Civil Court of First Instance, including any expert reports submitted to those files and the decisions delivered by the Court of Cassation on appeal.
2. Were the applicants’ rights to property, as protected under Article 1 of Protocol No. 1 to the Convention, violated on account of the oil leak that led to an explosion on 3 May 2004?
a. Have the State authorities complied with their positive obligations under Article 1 of Protocol No. 1 to take precautionary measures to protect the applicants’ properties (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII)? In particular:
i. Were the State authorities aware of the oil leak prior to the explosion of 3 May 2004?
ii. Was there an adequate legislative framework in place to regulate and supervise the setting up and the operation of oil refineries, including town planning restrictions in their proximity?
iii. Did the State authorities sufficiently inform the applicants of the risks involved in owning properties in the vicinity of an oil refinery?
iv. Did the State authorities conduct an effective official investigation to shed light on the circumstances surrounding the explosion and to identify those responsible for it, including any State agents or authorities?
v. Were the applicants provided with an appropriate legal mechanism, with the necessary procedural guarantees, to vindicate their rights effectively, including by claiming damages in respect of the losses they had sustained (see, mutatis mutandis, Kotov v. Russia [GC], no. 54522/00, §§ 112-114, 3 April 2012)?
b. Is there a continuing restriction on the applicants’ use of their properties? If so, does that restriction amount to an interference? Moreover, what is the legal basis for that restriction and does it impose a disproportionate and excessive burden on the applicants?
The Government are requested to indicate whether the oil leak originating from the TÜPRAŞ Batman Oil Refinery has been stopped and to provide information as to the progress made in cleaning up the underground oil leak.
Appendix
No.
Application No.
Lodged on
Applicant’s Name
Date of birth
Place of residence
Represented by
56681/09
16/10/2009
Orhan GÜNLEMENÇ
03/05/1968
Batman
Hasan GÜNLEMENÇ
23/11/1978
Batman
Faik GÜNLEMENÇ
12/05/1981
Batman
Halil GÜNLEMENÇ
29/03/1989
Batman
Muhittin GÜNLEMENÇ
01/03/1992
Batman
Yıldız TUNG
01/02/1973
Batman
Türkan YILDIZ
02/01/1971
Batman
Mesude YILMAZ
07/05/1974
İzmir
Fatma GÖZEL
29/03/1983
Batman
Ayşe GÜN
12/02/1967
Batman
Emine TOPTAŞ
19/01/1962
Batman
Leyla TUNG
31/08/1976
Batman
Selime GÜNLEMENÇ
29/03/1985
Batman
Mehmet Cemal İLGE
1937/10
17/12/2009
Zeki KAYIK
01/01/1958
Batman
Abdulhamit ÇAKAN
1942/10
17/12/2009
Abdulvahap KAYIK
01/01/1960
Batman
Abdulhamit ÇAKAN
3438/10
17/12/2009
Aydın PEKTAŞ
16/12/1969
Batman
Abdulhamit ÇAKAN
3446/10
17/12/2009
Mehmet KOLU
04/11/1984
Batman
Ahmet KOLU
01/01/1981
Batman
Abdulhamit ÇAKAN
3816/10
17/12/2009
Cemil İBİN
10/02/1934
Batman
Abdulhamit ÇAKAN
3828/10
17/12/2009
Seyfettin FIRAT
09/09/1978
Batman
Abdulhamit ÇAKAN
3845/10
17/12/2009
Şabettin YAŞAR
30/03/1963
Batman
Abdulhamit ÇAKAN
16312/10
08/03/2010
Mahmut DOĞU
16/12/1947
Batman
Mehmet Masum ERKEN
16433/10
08/03/2010
Zeki ÇİÇEK
04/05/1962
Batman
Mehmet Masum ERKEN
16447/10
02/03/2010
Hüseyin KARA
01/01/1965
Batman
Mehmet Masum ERKEN
17860/10
08/03/2010
GÖZKESER GIDA LTD. ŞTİ.
Batman
Mehmet Masum ERKEN
21974/10
30/03/2010
Abdulkadir FIRAT
18/07/1973
Batman
Abdulhamit ÇAKAN
21979/10
30/03/2010
Salih ÇİFTLİK
01/01/1950
Batman
Abdulhamit ÇAKAN
21981/10
30/03/2010
Sabri KUAŞ
01/01/1932
Batman
Necat ÖZTAŞ
12/05/1974
Batman
Necdet ÖZTAŞ
26/11/1970
Batman
Abdulhamit ÇAKAN
21988/10
30/03/2010
İbrahim FIRAT
15/06/1933
Batman
Abdulhamit ÇAKAN
21994/10
30/03/2010
Hikmet YARGI
01/01/1965
Batman
Abdulhamit ÇAKAN
22671/10
30/03/2010
Salih OKAY
30/01/1955
Batman
Emine GÜLMÜŞ
10/04/1983
Batman
Abdulhamit ÇAKAN
22677/10
30/03/2010
Mazhar KURŞUN
02/05/1963
Batman
Abdulhamit ÇAKAN
22684/10
30/03/2010
İsmet YARGI
01/01/1965
Batman
Abdulhamit ÇAKAN
22685/10
30/03/2010
Abdulaziz İPEK
01/01/1956
Batman
Abdulhamit ÇAKAN
22687/10
30/03/2010
Abdullah YARGI
01/01/1970
Batman
Abdulhamit ÇAKAN
26752/10
06/04/2010
Cengiz ACAR
10/10/1972
Batman
Mehmet Masum ERKEN
26757/10
06/04/2010
Mehmet Beşir ÇİFTÇİ
05/10/1960
Batman
Mehmet Masum ERKEN
26759/10
06/04/2010
Mehmet Ali ÖZ
05/03/1955
Batman
Mehmet Masum ERKEN
26760/10
06/04/2010
Şeyh Memet GÜRBÜZ
15/09/1967
Batman
Mehmet Masum ERKEN
26765/10
06/04/2010
Kadri ŞENSES
03/09/1978
Batman
Mehmet Masum ERKEN
26767/10
06/04/2010
Memet Sait KURT
20/01/1938
Batman
Mehmet Masum ERKEN
26769/10
06/04/2010
Mehmet Emin GÜNEŞ
02/01/1965
Batman
Celal GÜNEŞ
06/06/1975
Batman
Orhan GÜNEŞ
05/02/1968
Batman
Mehmet Masum ERKEN
35034/10
01/06/2010
Tahir ALTUN
01/01/1965
Batman
Murat KORKMAZ
40711/10
17/05/2010
Zeki ÇELİK
15/07/1947
Batman
Mehmet Cemal İLGE
57001/10
31/08/2010
Yusuf ALTUN
01/01/1960
Batman
Mehmet Masum ERKEN
32021/11
14/01/2011
Cemal ALTUN
01/01/1947
Batman
Mehmet Masum ERKEN
Full & Egal Universal Law Academy