Communicated on 15 March 2018
SECOND SECTION
Application no. 41171/17
Recep KARA and others against Turkey
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants, who are all Turkish nationals, are represented by Mr Levent Ercan, a lawyer practicing in Ankara. The details of the applicants appear in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
In October 1998, the applicants’ relatives died in a traffic accident on public transport. Subsequently, the compensation proceedings that they had initiated against the Municipality ended in their favour and the Bor Civil Court of General Jurisdiction awarded them both pecuniary and non‑pecuniary compensation with interest running from 20 October 1998 (see appendix for further details).
The enforcement proceedings that were initiated by the applicants to recover the judgment debts remained futile as the Municipality failed to comply with the judgments.
On 1 August 2011, 30 March 2012 and 22 April 2012 the applicants applied to the Court and their cases were registered under applications nos. 58922/11, 26755/12 and 38222/11.
Following the adoption of Law no. 6384, these applications were declared inadmissible by the Court on 17 September 2013, 4 May 2017 and 17 September 2013 respectively due to non-exhaustion of domestic remedies, as the applicants had to use the remedy before the Compensation Commission set up under that law in respect of their complaint concerning non-enforcement of domestic court decisions.
Subsequently, the applicants applied to the Compensation Commission. Following an examination of the cases, on 3 October 2013 the Compensation Commission found for the applicants. It awarded them non‑pecuniary damage due to failure of the authorities to enforce the respective judgments of the Bor Civil Court of General Jurisdiction (in application no. 41171/17 the applicants were awarded a total of 9,000 Turkish liras (TRY), in application no. 41403/17 the applicants were awarded a total of TRY 4,500 and in application no. 41410/17 the applicants were awarded a total of TRY 9,000). The Compensation Commission further held that the failure of the domestic authorities to pay the due judgment debts constituted a breach of Article 138 of the Constitution and Article 6 of the Convention. The Compensation Commission also notified its decisions on the relevant Municipality to secure the payment of the due judgment debts. However, according to the information in the case files, the due judgment debts still remain unpaid.
Following the respective decisions of the Compensation Commission, the applicants also filed appeals with the Ankara Regional Administrative Court. The appeals were rejected on 11 December 2013 (applications nos. 41171/17 and 41403/17) and 20 December 2013 (application no. 41410/17).
The applicants then filed individual applications with the Constitutional Court and complained that the initial judgment debts still remained unpaid.
On 24 January 2017 (application no. 41171/11) and 19 December 2016 (applications nos. 41402/17 and 41410/17), the Constitutional Court dismissed the cases. The Constitutional Court held that the applicants could not be considered as victims of an alleged violation under Article 6 of the Convention as they had received non-pecuniary compensation from the Compensation Commission. The decisions of the Constitutional Court bear no mention of the due judgment debts, which still remain unpaid.
COMPLAINTS
The applicants complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention that the domestic authorities had failed to pay the compensation that had been awarded to them by the domestic courts in 2005. They further alleged that they had no effective remedy by which they could collect the due judgment debts that remain unpaid.
QUESTIONS TO THE PARTIES
1. Does the non-execution of the respective judgments of the Bor Civil Court of General Jurisdiction (files nos. 2004/51E and 2005/33K, 2007/3E and 2007/124K and 2000/43E and 2002/362K) that had awarded compensation to the applicants, give rise to a breach of their rights guaranteed by Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (see Dildar v. Turkey, no. 77361/01, 12 December 2006, Çakır and Others v. Turkey, no. 25747/09, 4 June 2013)?
2. In particular, can the remedy before the Compensation Commission, set up by Law no. 6384 be considered as an effective remedy in the circumstances of the present cases?
APPENDIX I
Application no. and
date of introduction
Applicant’s name, date of birth, place of residence
Details of domestic court decision
Amount of due judgment debt that remain unpaid
41171/17
Mr Recep Kara
1957
Mersin
Ms Ümmügülsüm
Karakayalı
1983
Adana
Mr Mustafa Kara
1986
Hatay
Bor Civil Court of General Jurisdiction
8 February 2005
(file no. 2004/51E and 2005/33K)
TRY 500 Turkish Liras in respect of non-pecuniary and TRY 500 in respect of pecuniary damage to each applicant
41403/17
Mrs Emine Genç
1944
Niğde
Mr Duran Genç
1981
Niğde
Bor Civil Court of General Jurisdiction
10 March 2007
(file no. 2007/3E and 2007/124K)
To the first applicant:
TRY 12,932.85 in respect of pecuniary damage, and TRY 200 in respect of non-pecuniary damage.
To the second applicant:
TRY 256.33 in respect of pecuniary damage and TRY 150 in respect of non-pecuniary damage
41410/17
Mr Medinet Şenlik
1945
Niğde
Ms Feride Şenlik
1976
Niğde
Mr Erkin Şenlik
1978
Niğde
Bor Civil Court of General Jurisdiction
6 November 2002
(file no. 2000/43E and 2002/362K)
To the first applicant:
37,908,640,467 (old Turkish liras TRL) in respect of pecuniary damage, and TRL 250,000,000 in respect of non-pecuniary damage.
To the second applicant:
TRL 2,659,067,888 in respect of pecuniary damage and
TRL 250,000,000 in respect of non‑pecuniary damage
To the third applicant:
TRL 250,000,000 in respect of non‑pecuniary damage.
APPENDIX II
List of applications
1.41171/17Kara and Karakayalı v. Turkey
2.41403/17Genç v. Turkey
3.41410/17Şenlik v. Turkey
Full & Egal Universal Law Academy