SECOND SECTION
DECISION
Application no. 16746/10
Emine MUTLU against Turkey
and 26 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 20 November 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
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. A list of the applicants, who are all Turkish nationals, is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants are the heirs of drivers who had been involved in fatal accidents that had been caused through their own fault.
5. On different dates, the applicants initiated proceedings before the domestic courts against insurance companies, and requested compensation for the pain and suffering that they had to endure due to the death of their respective inheritors. At the material time, when determining the amount of compensation to be paid to the deceased drivers’ inheritors, the Court of Cassation did not take into consideration the drivers’ fault in the accidents.
6. As the cases were pending before the first instance courts, in 2008 the Court of Cassation changed its approach on similar cases and decided that no compensation should be awarded to the heirs of drivers who had been at fault in road accidents. It held that the heirs should not take advantage of the deceased drivers’ fault and that the insurance companies had the right to raise the objections they would have submitted against the drivers at fault, had they survived the accidents.
7. Relying on the recent case-law of the Court of Cassation, the first instance courts dismissed the applicants’ cases respectively as there was no dispute between the parties that the drivers had been at full fault in the accidents.
8. Some of the applicants appealed against the judgments. Some of them, taking into account the change in the case-law, considered that an appeal would be futile and did not appeal.
9. Following the introduction of the present cases, in 2012 the Court of Cassation once again revised its approach on the matter. In particular, when a first instance court insisted on its previous judgment to award compensation to the heirs of the driver who had been at fault in the road accident, the matter was transferred to the Joined Civil Chambers of the Court of Cassation for unification of case-law. In a leading decision dated 22 February 2012, the Court of Cassation reassessed the situation and decided that even if the deceased drivers had been at full fault in the accidents, the plaintiffs should be awarded compensation by the insurance companies for the indirect suffering they had to endure due to the fatal accident.
10. The details of the applications may be found in the appendix.
B. Relevant domestic law and practice
11. According to Section 91 § 1 of Law no. 2918 (Code on Road Traffic), it is mandatory for the owners to insure their motorised vehicles. The owner and the driver of a vehicle are both responsible for any corporal and/or pecuniary damage caused by the vehicle.
12. Until 2008, when deciding on the amount of compensation awarded to the heirs of a deceased driver, the Court of Cassation did not take into consideration whether the driver had been at fault in the accident. The court held the view that the damage suffered by the heirs was an indirect result of the accident and that the compensation claim of the heirs was not the result of inheritance rights. The court further held that the heirs no liability in the impugned accidents and could not be held responsible for the drivers’ faults.
13. As of 2008 and until 2012, the Court of Cassation changed its approach on the matter and decided that the deceased drivers’ fault had to be taken into consideration. It held that the heirs should not take advantage of the deceased drivers’ fault and that the insurance companies had the right to raise the objections they would have submitted against the drivers at fault, had they survived the accidents.
14. Subsequently, in a leading decision dated 22 February 2012 the Joint Civil Chambers of the Court of Cassation had the opportunity to clarify the case-law and decided to continue using the first approach. It held that the heirs of a deceased driver should be awarded compensation even though the accident had been caused through the driver’s own fault.
COMPLAINT
15. The applicants complained under Article 6 of the Convention of a breach of the principle of legal certainty on account of the conflicting case‑law of the Court of Cassation. Some of the applicants also invoked Article 1 of Protocol No. 1 to the Convention in relation to the same complaint.
THE LAW
16. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
17. The applicants stated that as a result of the change in the case-law of the Court of Cassation, their compensation cases had been unjustly dismissed. In this regard, they invoked Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
18. The Court considers that the applicant’s complaints should be examined under Article 6 § 1 of the Convention, which reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”
19. The Government argued in the first place that the applications should be declared inadmissible due to non-compliance with several admissibility rules, such as non-exhaustion of domestic remedies and the introduction of the cases after the six-month time-limit. As to the merits, the Government further submitted that there had not been profound and long standing differences in the Court of Cassation’s approach to the material dispute before it so as to breach the principle of legal certainty. They further stated that the domestic law had provided an effective mechanism to ensure the consistency and uniformity of case-law.
20. The Court considers that it does not need to resolve the preliminary issues submitted by the Government, as the applications are, in any event, inadmissible for the reasons stated below.
21. The Court notes at the outset that it has in the past examined an identical case and found it inadmissible for being manifestly ill-founded (see Şen v. Turkey (dec.) [Committee], no. 24537/10, 14 February 2012).
22. The Court further reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. It is not the Court’s role or function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Sepe and others v. Italy (dec.), no. 36167/07, §§ 16-17, 16 September 2014).
23. The right to a fair trial must be interpreted in the light of the Preamble to the Convention, which declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty. Conflicting decisions in similar cases heard in the same court which, in addition, is the court of last resort in the matter, may, in the absence of a mechanism which ensures consistency, breach that principle and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 55‑57, 20 October 2011). Nevertheless, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04 § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010).
24. Furthermore individual petition to the Court cannot be used as a means of dealing with or eliminating conflicts of case-law that may arise in domestic law or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts (Nejdet Şahin and Perihan Şahin, cited above, § 95).
25. The Court has been called upon to pronounce judgment on conflicting decisions that may be made within a single court of appeal (see Tudor Tudor v. Romania, no. 21911/03, 24 March 2009). In addition to the “profound and long standing” nature of the divergences in issue, the legal uncertainty resulting from the inconsistency in the practice of the courts concerned and the lack of machinery for resolving the conflicting decisions were also considered to be in breach of the right to a fair trial (see Tudor Tudor, cited above, §§ 30-32).
26. In this regard the Court has reiterated on many occasions the importance of setting mechanisms in place to ensure consistency in court practice and uniformity of the courts’ case-law (see Schwarzkopf and Taussik, v. the Czech Republic (dec.), no. 42162/02, 2 December 2008).
27. Turning to the facts of the present applications, the Court notes that initially when the applicants initiated proceedings before the respective first instance courts, they could have reasonably expected a finding in their favour, as the case-law at the time had entitled the heirs of a deceased driver to compensation –even though the deceased driver had been fully at fault. However, when the Court of Cassation deviated from its previous case-law in 2008, it gave a detailed explanation as to why the case at hand had been decided contrary to the already existing case-law. The Court observes at this point that following the detailed decision of the Court of Cassation, in nine applications, the applicants did not file an appeal when their cases were dismissed by the first instance courts and in four applications they did not pursue their case (see the table in the annex). Subsequently in 2010, the same legal matter had to be reevaluated following a divergent decision delivered by a first instance court. The Joined Civil Chambers of the Court of Cassation conducted a fresh examination of the legal problem to unify its case-law. In a leading judgment, the Court of Cassation decided to adopt its first approach and held that a deceased driver’s heir should be entitled to compensation for the loss and suffering he had to endure as a result of the fatal accident, even though the driver had been at full fault.
28. The Court notes that this new leading judgment which was in the applicants’ favour did not have any effect on their cases since those proceedings had already become final. Nevertheless, the domestic law and practice provided a mechanism to ensure the consistency of court practice and unification of case-law. The Court recalls once again that achieving consistency of the law may take time, and case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Nejdet Şahin and Perihan Şahin, cited above, §§ 83 and 58).
29. In the light of the foregoing, the present applications must be declared inadmissible as manifestly ill-founded under article 35 §§ 3 and 4 of the Convention on the ground that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 13 December 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
Case specific details
16746/10
15/03/2010
Emine MUTLU
01/01/1964
Adıyaman
Erhan BORA
On 4 December 2008 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 7 December 2009.
17430/10
15/03/2010
Tülin FIRAT
11/09/1965
Ankara
Berna FIRAT
26/09/1989
Ankara
Erhan BORA
On 6 November 2008 the Ankara Commercial Court dismissed the applicants’ case. The applicants did not appeal against the judgment.
17438/10
15/03/2010
Gürcü ÇITAK
01/01/1967
Yozgat
Erhan BORA
On 16 July 2009 the Ankara Commercial Court dismissed the applicant’s case. On 22 March 2010 the Court of Cassation upheld the judgment.
17454/10
16/03/2010
Şahinaz KEMEÇ
01/01/1964
Istanbul
Duygu KEMEÇ
02/06/1988
Istanbul
Erhan BORA
On 26 May 2008 the Beyoğlu Commercial Court awarded compensation to the applicants. On 14 December 2009 the Court of Cassation quashed the judgment of the first instance court. On 21 July 2010 the first instance court dismissed the case. No appeal was lodged against this judgment.
17465/10
15/03/2010
Hüseyin ATLI
11/12/1961
Çankırı
Handan ATLI
29/01/1978
Çankırı
Erhan BORA
On 22 April 2009 the Ankara Commercial Court dismissed the applicants’ case. On 23 September 2010 the Court of Cassation upheld the judgment. Subsequently, relying on the change in case-law, the applicants’ rectification request was accepted and the case file was resend to the first instance court for a fresh examination on 20 June 2013. According to the latest information in the file, the case is still pending before the first instance court.
17918/10
10/03/2010
Nurcan ŞAHİN
09/02/1965
Ordu
Erhan BORA
On 3 October 2007 the Beyoğlu Commercial Court awarded compensation to the applicant. On 13 April 2009 the Court of Cassation quashed the judgment of the first instance court. On 17 February 2010 the first instance court dismissed the case and the no appeal was filed against this judgment.
19692/10
23/03/2010
Selvinaz SEVİNDİK
04/08/1988
Samsun
Erhan BORA
On 24 July 2007 the Beyoğlu Commercial Court awarded compensation to the applicant. On 19 January 2009 the Court of Cassation quashed the judgment. On 23 February 2010 the first instance court adhered to the decision of the Court of Cassation and dismissed the case. Subsequently the Court of Cassation rejected the applicant’s appeal request.
19739/10
22/03/2010
Çetin TEZCAN
06/01/1950
Muğla
Saadet TEZCAN
18/05/1957
Muğla
Erhan BORA
On 12 February 2009 the Ankara Commercial Court dismissed the applicants’ case. The appeal proceedings were pending at the time when the application was lodged.
19783/10
19/03/2010
Fatma ARTLI
15/11/1980
Samsun
Hakan Cemal ARTLI
15/12/1998
Samsun
Can ARTLI
14/06/2004
Samsun
Cem ARTLI
14/06/2004
Samsun
Erhan BORA
On 20 June 2007 the Ankara Commercial Court decided to award compensation to the applicants. On 4 June 2009 the Court of Cassation quashed the judgment of the first instance court. On 16 June 2010 the first instance court dismissed the applicants’ case. No appeal was lodged against this judgment.
19797/10
22/03/2010
Fadime İĞSİZ
21/10/1965
Manisa
Erhan BORA
The applicant initiated a compensation case before the Ankara Commercial Court but did not pursue her case. Consequently, on 1 June 2009 the first instance court decided to strike the case out.
19848/10
19/03/2010
Nurgül KAYA
05/02/1970
Ankara
Erhan BORA
On 4 October 2007 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 17 October 2008 the Court of Cassation quashed the judgment of the first instance court. On 24 March 2011 the first instance court dismissed the applicant’s case. The appeal request was also rejected on 31 May 2012.
19851/10
19/03/2010
Reyhan EROL
01/01/1964
Istanbul
Erhan BORA
On 14 November 2007 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 8 June 2009 the Court of Cassation quashed the judgment of the first instance court. As the applicant did not pursue her case, on 26 July 2010 the case was struck out by the first instance court.
19854/10
22/03/2010
Remziye KULOĞLU
16/08/1967
Erhan BORA
On 13 February 2008 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 15 September 2008 the Court of Cassation quashed the judgment of the first instance court. As the applicant did not pursue her case, on 26 January 2010 the case was struck out by the first instance court.
19861/10
22/03/2010
Melek KİRMAN
12/01/1966
Kocaeli
Reyhan KİRMAN
22/01/1992
Kocaeli
Ayhan KİRMAN
01/07/1994
Kocaeli
Erhan BORA
On 30 September 2010 the Ankara Commercial Court dismissed the applicants’ case. No appeal was lodged against this judgment.
19876/10
22/03/2010
Yılmaz GÜREL
19/12/1965
Tekirdağ
Erhan BORA
On 29 December 2008 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 14 December 2009.
20691/10
26/03/2010
Recebiye DEMİRTAŞ
30/03/1980
Bursa
Hilal DEMİRTAŞ
19/02/1998
Bursa
Eslem DEMİRTAŞ
23/09/2004
Bursa
Erhan BORA
On 13 December 2007 the Ankara Commercial Court dismissed the applicants’ case. This judgment was upheld by the Court of Cassation on 3 December 2009.
20735/10
23/03/2010
Bahar Işık YÜCEL
03/08/1978
Kayseri
Yalçın YÜCEL
08/04/2004
Kayseri
Erhan BORA
On 15 July 2008 the Beyoğlu Commercial Court awarded compensation to the applicants. On 14 December 2009 the Court of Cassation quashed the judgment. On 28 September 2010 the first instance court dismissed the case. No appeal was filed against this judgment.
20736/10
24/03/2010
Nermin TANGÖR
13/01/1939
Edirne
Erhan BORA
On 4 February 2009 the Ankara Commercial Court dismissed the applicant’s case. On 14 December 2009 the Court of Cassation rejected the applicant’s appeal request.
20739/10
24/03/2010
Nurten KIRCALI
01/05/1972
Kırklareli
Alp KIRCALI
24/05/1992
Kırklareli
Fikriye KIRCALI
04/03/1995
Kırklareli
Erhan BORA
On 9 October 2008 the Ankara Commercial Court dismissed the applicant’s case. On 23 December 2010 the Court of Cassation rejected the applicants’ appeal request.
21998/10
29/03/2010
Gülay ÇÖRDÜK
16/05/1972
Çorum
Fatma ÇÖRDÜK
06/03/1995
Çorum
Çağrı ÇÖRDÜK
07/11/1992
İzmir
Erhan BORA
On 15 November the Ankara Commercial Court awarded compensation to the applicants. On 8 June 2009 the Court of Cassation quashed the judgment. On 11 March 2010 the first instance court dismissed the case. On 28 June 2010 the Court of Cassation upheld the judgment.
22005/10
29/03/2010
Hatice PAMUK
20/11/1957
Bursa
Erhan BORA
On 28 February 2008 the Ankara Commercial Court awarded compensation to the applicant. On 9 October 2008 the Court of Cassation quashed the judgment. On 15 April 2010 the first instance court dismissed the case. No appeal was filed against this judgment.
28637/10
27/04/2010
Alime YAKICI
21/05/1963
Konya
Erhan BORA
The applicant initiated a compensation case before the Ankara Commercial Court but did not pursue her case. Consequently, on 11 February 2010 the first instance court decided to strike the case out.
28638/10
27/04/2010
Fatma DEĞERLİ
01/02/1950
Kayseri
Erhan BORA
On 5 March 2009 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 14 December 2009.
28640/10
27/04/2010
Aynur TÜRKMEN
05/04/1956
Muğla
Erhan BORA
On 6 November 2008 the Ankara Commercial Court dismissed the applicant’s case. No appeal was lodged against this judgment.
28642/10
27/04/2010
Hamide KALENDER
25/06/1954
Ordu
Erhan BORA
On 18 September 2008 the Ankara Commercial Court dismissed the applicant’s case. On 14 December 2009 the Court of Cassation upheld the judgment of the first instance court.
26803/11
14/01/2011
Gurbet ETE
09/12/1971
Siirt
Sinan ETE
25/07/1991
Siirt
Rezan ETE
01/01/1993
Mersin
Ferhat ETE
08/08/1994
Mersin
Azat ETE
10/05/1997
Siirt
Muhammet ETE
08/09/2005
Mersin
Mustafa ETE
08/09/2005
Mersin
Abdullah ERKOL
On 2 April 2009 the Mersin Commercial Court dismissed the applicants’ case. On 15 April 2010 and 7 October 2010 the applicants’ appeal and rectification requests were rejected respectively.
63054/11
20/07/2011
Fatma ZENT
01/01/1962
Adıyaman
Zafer ZENT
30/08/1990
Adıyaman
Erhan BORA
On 28 May 2009 the Ankara Commercial Court dismissed the applicant’s case.
Full & Egal Universal Law Academy