AS TO THE ADMISSIBILITY OF
Application No. 36216/97
by Nurhan TOSUNBAS
Gökhan TOSUNBAS
Okan TOSUNBAS
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 December 1996
by Nurhan TOSUNBAS, Gökhan TOSUNBAS and Okan TOSUNBAS against Turkey
and registered on 24 May 1997 under file No. 36216/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, born in 1960, 1985 and 1989 respectively, are
Turkish citizens and resident in Ankara. They are represented before
the Commission by Mr Nazim Ata, a lawyer practising in Ankara.
The facts of the present case, as submitted by the applicants,
may be summarised as follows.
On 10 August 1990 Tugrul Tosunbas, the husband of the applicant
Nurhan Tosunbas and the father of the two other applicants, died in
collision with a train while he was crossing a railway in his car.
On 18 October 1990 the applicants brought an action before the
Ankara Civil Court of General Jurisdiction against the State Railways
Company (Devlet Demiryollari, the DDY). They submitted that a train had
crashed into Tugrul Tosunbas's car, as a result of which he had died,
the DDY having failed to take the required technical measures at a
level crossing (hemzemin geçit). Accordingly, the applicants asked the
court to order that a certain amount of pecuniary and non-pecuniary
compensation be paid to them by the DDY.
The Ankara Civil Court of General Jurisdiction appointed experts
to establish the respective fault of the parties in the accident.
On 12 July 1992 the experts submitted their report to the court
stating that 25 % of the fault in the accident was attributable to the
DDY, as it had not taken sufficient measures to prevent accidents, and
75 % of the fault to the driver of the car as he had not stopped at the
level crossing.
The DDY filed an objection with the court against the conclusion
of the experts' report. They submitted that the experts appointed by
the court were not experts on railway transportation. Therefore, the
court appointed new experts from the istanbul Technical University.
On 20 May 1993 these experts submitted their report to the court.
They considered that there was no fault attributable to the DDY and
that the driver of the car was 100 % at fault in the accident as he had
not stopped at the level crossing.
The applicants filed an objection with the court against the
conclusion of the experts. At the applicants' request the court again
appointed a commission of experts on transportation from the istanbul
Technical University.
On 23 March 1995 the commission of experts submitted a final
report to the court. This report also stated that the driver of the car
had been 100 % at fault, for the same reasons, and that there was no
fault attributable to the DDY.
On 12 June 1995 the Ankara Civil Court of General Jurisdiction,
relying on the conclusions of the commission of experts, refused the
applicants' request for compensation as the DDY could not be held
responsible for the accident. The court also recalled that, in the
criminal proceedings instituted against him, the driver of the train
had been acquitted by the Kalecik Criminal Court on the ground that no
fault was attributable to him.
On 31 August 1995 the applicants lodged an appeal with the Court
of Cassation against the judgment of the Ankara Civil Court of General
Jurisdiction.
On 10 April 1996 the Court of Cassation dismissed the applicant's
appeal. It upheld the judgment of the Ankara Civil Court of General
Jurisdiction with its reasoning and assessment of the evidence.
On 13 May 1996 the applicants applied to the Court of Cassation
for rectification of its decision.
On 28 June 1996 the Court of Cassation dismissed the applicants'
request for rectification.
COMPLAINTS
1. The applicants complain that the length of the civil proceedings
exceeded the reasonable time requirement under Article 6 para. 1 of the
Convention.
2. The applicants further complain under Article 6 para. 1 of the
Convention that their right to a fair trial was breached as the
national courts refused their request for compensation.
THE LAW
1. The applicants complain that the length of the civil proceedings
exceeded the reasonable time requirement under Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission notes that the period to be taken into
consideration began on 18 October 1990, when the applicants brought an
action for compensation before the Ankara Civil Court of General
Jurisdiction. The proceedings ended on 28 June 1996, when the Court of
Cassation dismissed the applicants' request for rectification of its
earlier decision. The proceedings thus lasted 5 years, 8 months and 10
days.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the established case-law, in particular the complexity of the case
and the conduct of the applicant and of the relevant authorities (see,
Eur. Court HR, Vernillo v. Italy judgment of 20 February 1991, Series
A no. 198, p.12, para. 30; Monnet v. France judgment of 27 October
1993, Series A no. 273-A, p. 11, para. 27). Furthermore, the Convention
organs also consider it appropriate to make an overall assessment of
the length of proceedings in some cases (see e.g. Eur. Court HR, Cifola
v. Italy judgment of 27 February 1992, Series A no. 231, p. 9,
para. 14).
The Commission also recalls that according to the case-law of the
Convention organs, the exercise of the right to a hearing within a
reasonable time is subject, in civil cases, to diligence being shown
by the party concerned (see Eur. Court HR, Pretto and Others v. Italy
judgment of 8 December 1983, Series A no. 71, p. 14, para. 33). In
addition, only delays attributable to the national authorities may
justify a finding of failure to comply with the "reasonable time"
requirement (see, for example, Eur. Court HR, H v. United Kingdom
judgment of 8 July 1987, Series A no. 120-B, p. 59, para. 71).
As to the complexity of the case, the Commission finds that the
proceedings before the Ankara Civil Court of General Jurisdiction were
not simple. The issue before the court was a relatively complex one as
it concerned questions which required technical expertise on railways.
As regards the conduct of the applicants, it appears that they
did not object to the appointment of new experts of the opposite party.
In fact, they asked themselves for the consultation of yet another
expert team when they were dissatisfied with the second expert report.
They apparently never complained to the court of the time which the
various experts used for preparing their reports. At least part of the
delay caused by the consecutive consultation of three expert teams, and
in particular the period of one year and ten months between the
submission of the second and third expert reports (May 1993-March
1995), is therefore attributable to the applicants themselves.
As regards the conduct of the Turkish authorities, the Commission
notes that the applicants' case was dealt with by two levels of
jurisdiction and three sets of proceedings over 5 years, 8 months and
10 days.
It is true that the appointment of the first group of experts,
who were not specifically experts on railways, by the Ankara Civil
Court of General Jurisdiction caused a certain delay as their
conclusion was contested by the opposite party. However, the delay
caused by this fact was not very substantial, the period between the
submission of the first and second reports having been only some ten
months (July 1992-May 1993).
Following receipt of the final report drafted by the commission
of experts, the Ankara Civil Court of General Jurisdiction dealt
speedily with the applicants' action for compensation. The court
decided the case on 12 June 1995, that is two months and 20 days after
submission of the experts' third report on 23 March 1995.
The Court of Cassation dealt with the case in two sets of
proceedings. In particular, following the applicants' appeal on 31
August 1995, the Court of Cassation delivered its decision on 10 April
1996, that is less than eight months later. Furthermore, the Court of
Cassation dealt with the applicants' request for rectification of 13
May 1996 already on 28 June 1996, that is one month and 16 days later.
Accordingly, there was no unreasonable delay in the Court of
Cassation's proceedings.
Looking at the case as whole, the Commission therefore finds that
despite the long period spent on the taking of expert evidence, the
Turkish courts cannot be deemed responsible for any delay such as to
render the length of the proceedings unreasonable within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants further complain under Article 6 para. 1
(Art. 6-1) of the Convention that their right to a fair trial was
breached as the national court refused their request for compensation.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its sole task is to ensure observance of the engagements
undertaken by the High Contracting Parties in the Convention. It is not
competent to examine applications concerning errors of law or fact
allegedly committed by the competent national authorities, which are
competent, in the first place, to interpret and apply domestic law (No.
25062/94, Dec. 18.10.95, D.R. 83, p. 77).
In this case, the Commission notes that the applicants'
complaints concern the national courts' evaluation of the facts and the
evidence and their interpretation of the domestic law. The Ankara Civil
Court of General Jurisdiction held, under domestic law and in the
particular circumstances of the case, that the DDY (State Railways
Company) could not be held responsible for the accident. It therefore
refused the applicants' claim for compensation. The Commission finds
no evidence or basis on which to conclude that the Ankara Civil Court
of General Jurisdiction, in establishing the facts or interpreting the
domestic law, acted in an arbitrary or unreasonable manner. In
particular, the applicants could put forward their arguments and in
fact obtained the consultation of further experts at their request.
Therefore, there is no appearance of a violation of the applicants'
rights under Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy