Communicated on 6 October 2017
SECOND SECTION
Application no. 47370/08
Bahar ÖZBAŞ and Sabri OZBAS
against Turkey
lodged on 26 September 2008
SUBJECT MATTER OF THE CASE
The application concerns compensation proceedings brought by the applicant against the State and a private party on the basis of joint and several liability for a personal injury claim. As a result of the civil court’s rejection of the action against the State for lack of jurisdiction, the applicant brought her claim in respect of the State before the administrative courts. Thereafter both proceedings ran parallel to each other. In the civil proceedings, which were finalised prior to the administrative proceedings, an expert report was taken out on 23 April 2003 in order to assess the extent of the pecuniary damage suffered by the applicant. On 29 October 2003 the civil court awarded the applicant the entire amount in respect of pecuniary damage, as established in the expert report of 23 April 2003. In the meanwhile, but before the civil court had delivered its judgment, the applicants sought to revise their claim before the administrative court in the light of the expert report of 23 April 2003 and paid the necessary court fees. On 7 July 2004 the administrative court dismissed the applicant’s case on the ground that the applicant no longer had any legitimate interest pursuing her claim against the State since the civil courts had already awarded her the entire amount in respect of pecuniary damage. On 11 November 2005 the Supreme Administrative Court quashed the judgment of the administrative court holding that not only did the applicant have a right to pursue the claim in respect of the State on the basis of joint and several liability but that the applicant had also been unable to collect the sum from the private party. On remittal, the administrative court ruled in accordance with the Supreme Court yet awarded the applicants solely the initial amount sought by the applicant and rejected her amendment request without giving reasons. On 6 May 2008 the Supreme Administrative Court upheld this judgment.
Relying on Article 1 of Protocol No. 1 and Article 6 § 1 and Article 13 of the Convention, the applicant complains that although the State was found jointly and separately liable for pecuniary damage suffered by the applicant, she was unable to collect the entire sum as a result of the alleged failure of the administrative court to dismiss her request to amend her claim in the light of the expert opinion which had established the extent of her damages during the civil proceedings.
QUESTION tO THE PARTIES
Having regard to civil court’s judgment and the expert report establishing the extent of the applicant’s pecuniary damage during those proceedings as well as the administrative court’s judgment acknowledging the State’s joint and several liability concerning the damage suffered by the applicant, did the applicant have a legitimate expectation of obtaining a judgment from the administrative court awarding her the entire pecuniary damage? If so, has there been a violation of the applicant’s right of access to court and/or an interference with the applicant’s peaceful enjoyment of possessions, as guaranteed by Article 6 of the Convention and/or 1 of Protocol No. 1 having regard to the fact that the administrative court dismissed the applicant’s request to amend her claim? (see Fatma Nur Erten and Adnan Erten v. Turkey, no.14674/11, 25 November 2014)?
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