Communicated on 4 November 2014
SECOND SECTION
Application no. 4401/09
Mehmet Nuri KARA
against Turkey
lodged on 14 January 2009
STATEMENT OF FACTS
The applicant, Mr Mehmet Nuri Kara, is a Turkish national, who was born in 1936 and lives in Batman. He is represented before the Court by Mr M.M. Erken and Mr S. Özevin, lawyers practising in Batman.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
On 3 May 2004 a big explosion occurred in Toptancılar Sitesi area of Batman, in close proximity to the TÜPRAŞ Batman Oil Refinery (“TÜPRAŞ”). The explosion resulted in three deaths and many injuries. The explosion and the ensuing fire also damaged many properties in the vicinity, including the property of the applicant, which was located approximately 200-250 metres from Toptancılar Sitesi.
A fact-finding commission was established in the aftermath of the incident by the Batman Governor’s Office to ascertain the cause of the explosion. It appears that the preliminary investigations led by the fact‑finding commission, with the assistance of experts, established that the explosion had been caused by an underground oil leak. The source of the leak, however, could not be identified. Amongst the initial suspects were TÜPRAŞ, an oil storage and supply facility administered by the Ministry of Defence in the area (Milli Savunma Bakanlığı Akaryakıt İkmal ve NATO Pol Tesisleri), and various private petrol stations.
A report issued by the Department of Petroleum and Natural Gas Engineering of the Istanbul Technical University School of Mines on 17 May 2004 estimated that the oil leak had spread over an area of 15 decares (15,000 square metres), which area was at risk of new explosions.
2. Compensation proceedings brought by the applicant
On 16 February 2005 the applicant brought compensation proceedings before the Batman Civil Court of First Instance against both TÜPRAŞ and the facilities of the Ministry of Defence for the depreciation in the value of his property. The applicant contended that since the underground oil leak had spread across the whole district, the area where his property was located was at continuing risk of explosions and fire. Moreover, the oil had contaminated the drinking water and the smell of petroleum emanating from the manholes in the area caused further anxiety. These factors had forced many people to abandon their houses and workplaces and had caused a significant drop in the property values in the area.
On 25 September 2006 an expert report was issued regarding the applicant’s claim, upon the request of the Batman Civil Court of First Instance. The expert report indicated that the explosion of 3 May 2004, which was equivalent to a magnitude 9 earthquake, had caused large cracks in the support elements of the applicant’s property. The report also stated that the unfavourable conditions in the area had caused a 50% drop in the value of the properties in the vicinity, and calculated the applicant’s loss at 35,341.25 Turkish liras (TRY) (approximately 20,640 euros (EUR)) as of the date on which he brought the action for compensation.
It appears that on 27 February 2007 the experts submitted an additional report upon the order of the first-instance court. While a copy of that additional report has not been submitted to the Court, the information in the case file indicates that the latter report assessed the applicant’s loss at TRY 32,821.25.
On 18 April 2007 the Batman Civil Court of First Instance dismissed the applicant’s compensation request. It ruled that in view of the distance of the applicant’s property from the site of explosion, which was at least 250 metres, and having regard to the fact that the property had sustained no structural damage on account of the explosion, it was not possible to hold that the property in question had declined in value as a result of the explosion of 3 May 2004. The applicant appealed against this judgment.
On 18 March 2008, following a hearing, the Court of Cassation upheld the judgment of the first-instance court, and on 9 July 2008 it rejected the applicant’s rectification request. The final decision of the Court of Cassation was served on the applicant on 25 August 2008.
3. Criminal proceedings initiated against TÜPRAŞ executives
According to the limited information in the case-file, a criminal investigation was initiated against a number of TÜPRAŞ executives in relation to the explosion that took place on 3 May 2004. It appears that the expert reports obtained during the investigation and the ensuing criminal trial were not able to ascertain the source of the leak.
In its judgment dated 1 May 2008 the Batman Assize Court held that while its proximity to the site of explosion suggested the responsibility of TÜPRAŞ for the explosion, it was not possible to determine whether any of the individual suspects bore liability for it, particularly bearing in mind that the leak had been ongoing for a considerable amount of time. The assize court accordingly acquitted the TÜPRAŞ executives.
The Court has no further information regarding the criminal proceedings, but it appears that the applicant had not joined them as a civil party (müdahil).
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the compensation proceedings before the Batman Civil Court of First Instance were not fair because that court rejected his compensation claim on the sole basis of the distance of his property from the site of explosion, without explaining why it did not take into account the expert reports establishing the depreciation in the value of his property and without providing any explanation for the structural damage sustained to the property. The decisions of the Court of Cassation had similarly lacked reasoning. The applicant further alleges in this connection that other people in similar situations were able to receive compensation for their damages.
The applicant contends that his property rights, as protected under Article 1 of Protocol No. 1 to the Convention, were violated on account of the damages he suffered following the explosion of 3 May 2004, and that he was not indemnified for his damages. He also maintains that the State authorities failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect his property rights. He lastly argues under this provision that the continuing restrictions on his use of property due to the ongoing danger of explosion in the area, which essentially results from the authorities’ failure to stop the oil leak and clean up the affected area, constitutes a further violation of his rights under Article 1 of Protocol No. 1.
The applicant complains under Article 13 that the authorities did not take the necessary steps to elucidate the circumstances surrounding the explosion in order to determine liability and punish those responsible, including any State agents involved, and that the criminal investigation into the incident were conducted in bad faith and were ineffective.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular;
(a) Did the Batman Civil Court of First Instance provide sufficient reasoning for its judgment, including as to why it disregarded the findings in the expert reports which it had ordered of its own motion?
(b) Did the Batman Civil Court of First Instance examine the essence of the applicant’s complaint, which concerned the reduction in the value of his property on account of the continuing hazards caused by the oil leak?
The parties are requested to provide a copy of the second expert report dated 27 February 2007 submitted to the Batman Civil Court of First Instance, as well as a copy of the minutes of the hearing (duruşma tutanağı) held before the Court of Cassation on 18 March 2008 and the appeal request submitted to that court.
2. Was the applicant’ s right 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 applicant’s property (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 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?
(iv) Was the applicant provided with an appropriate legal mechanism, with the necessary procedural guarantees, to vindicate his rights effectively, including by claiming damages in respect of the losses he 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 applicant’s use of his property? 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 applicant?
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