Last Updated on April 24, 2019 by LawEuro
SECOND SECTION
DECISION
Application no.12397/10
Kazım İMAK and Hatun İMAK
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 March 2019 as a Committee composed of:
Valeriu Griţco, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 February 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Kazım İmak and Ms Hatun İmak, are Turkish nationals, who were born in 1954 and 1958 respectively and live in Tunceli. They were represented before the Court by Mr M. Şakar and Mr M. Karagöz, lawyers practising in Köln and Elazığ.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
1. Background to the case
4. The applicants’ son, Ö., was allegedly involved in a terrorist attack carried out by the PKK (the Workers’ Party of Kurdistan, an illegal armed organisation) on 13 August 1996, which targeted a train station and resulted in the death of a railway employee named İ.
5. On 1 November 1996 the applicants’ son died.
6. On an unspecified date, the heirs of İ. brought a full remedy action before the Sivas Administrative Court against the Ministry of Interior (“the Ministry”) to seek compensation of the losses they suffered from their relative’s death.
7. On 13 May 1999 the Sivas Administrative Court found in favour of them and partially awarded pecuniary and non-pecuniary damage.
8. On 18 October 2001 the Supreme Administrative Court upheld the judgment in question, which thereby became final.
9. In the meantime, on 19 April 2000, the Ministry of Finance paid the heirs of İ. the amount of 2,690,939,000 Turkish liras (TRL).
2. Recovery proceedings initiated against the applicants
10. In order to recover the aforementioned sum, on 17 April 2001, the Ministry brought proceedings against, among others, the applicants, who were considered as the lawful heirs of their late son.
11. On 3 December 2003 the Kangal Civil Court of First Instance found in favour of the Ministry and held the applicants, jointly and severally liable with other defendants, for the payment of TRL 2,690,939,000 together with interest from 19 April 2000, that is the date on which the payment was made to theheirs ofİ.
12. On 19 May 2007 the operative part of the Kangal Civil Court of First Instance’s judgment was published in a national newspaper.
13. On 9 June 2008 the applicants lodged an appeal against the first‑instance court’s judgment before the Court of Cassation.
14. They claimed, first, that the first-instance court had failed to duly notify them of the judgment and that it became known to them on 26 May 2008 when they found out that it was published in a newspaper. Secondly, as regards the merits of the case, they argued that they had had no involvement whatsoever in the terrorist attack and thus, they should not have been held responsible for the losses incurred by the Ministry. They further submitted that they should have been presumed to have disclaimed the estate of their late son who had died without leaving any inheritable assets. They also referred to the Court of Cassation’s decisions, which were in favour of individuals who were in similar circumstances as them, in support of their arguments.
15. On 18 June 2009 the Court of Cassation upheld the first-instance court’s judgment without giving an express reply to the applicants’ main argument that they should have been presumed to have disclaimed their late son’s estate.
16. On 21 July 2009 the Court of Cassation’s decision was notified to the applicants.
17. On 24 November 2009 the Court of Cassation declared the applicants’ request for rectification inadmissible ratione valoris,for the value of the subject-matter of the dispute fell below the monetary threshold set out at the former Code of Civil Procedure (Law no. 1086) for requesting the rectification of a decision, which stood at 8,510 Turkish liras (TRY)[1] at the material time.
3. Enforcement proceedings
18. On 6 December 2007 the Execution Office of Sivas issued a payment order against the applicants for an amount of TRY 11,612.30, which corresponded to the amount awarded by the first-instance court, the interest accrued and enforcement costs.
19. The applicants claimed that they had failed to comply with the terms of the payment order and as a result, their personal properties such as their refrigerator, television and washing machine had been seized and auctioned off by the Execution Office of Sivas. They also contended that an injunction had been placed on their bank account, their vehicle and five immovable properties which they had owned.
20. In their observations, the Government informed the Court that the debt collection proceedings initiated against the applicants had been discontinued on 21 November 2011.
21. The applicants contested the Government’s submissions. They maintained that the injunctions placed on their immovable properties had still not been lifted.
COMPLAINT
22. The applicants complained in substance under Article 6 § 1 of the Convention that the domestic courts failed to adduce sufficient reasons for holding them financially liable for the losses caused by an offence allegedly committed by their son.
THE LAW
1. The parties’ arguments
23. The Government firstly argued that the application was incompatible ratione materiae with the provisions of the Convention because the applicants lacked the status of “victim” within the meaning of Article 34 of the Convention. In this regard, they noted that the enforcement proceedings initiated against the applicants had been discontinued and in any event more than ten years had passed from date of the first-instance court’s judgment.
24. Secondly, the Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have filed a counter lawsuit against the Ministry to obtain a declaratory judgment that their son’s died without leaving any assets sufficient to meet any liability. In their view, the applicants could have also made this argument before the first-instance court in the form of a separate plea.
25. The Government further submitted that the application had been lodged outside the six-month time-limit. In their view, the applicants made a futile request by filing for rectification of the Court of Cassation’s decision of 18 June 2009 as the value of the subject matter of the dispute did not reach the monetary threshold required for rectification proceedings to be instituted. The final domestic court decision was, therefore, the Court of Cassation’s decision of 18 June 2009, which had been notified to the applicants’ lawyer on 21 July 2009.
26. Finally, the Government maintained that the application was in any event manifestly ill-founded under Article 35 § 3 of the Convention.
27. The applicants contested the Government’s arguments and maintained that they had complied with all of the admissibility criteria.
2. The Court’s assessment
28. The Court finds it unnecessary to examine all of the Government’s preliminary objections as the present application is any event inadmissible for non-compliance with the six-month time-limit set out in Article 35 of the Convention (see Gojević-Zrnić and Mančić v. Croatia (dec.), no. 5676/13, 17 March 2015).
29. In that connection, the Court reiterates that the six-month period runs from the final decision in the process of exhaustion of domestic remedies (see Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).
30. Turning to the present case, the Court notes that the final domestic decision within the meaning of Article 35 § 1 of the Convention is the Court of Cassation’s decision of 18 June 2009, notified to the applicants on 21 July 2009 (see paragraph 16 above). It is from this date that the six‑month period began to run. The applicants’ application for rectification of the decision without respecting the procedural rules of domestic law cannot interrupt the six-month period. The applicants, assisted by a lawyer throughout the proceedings before the national courts, had to know and respect the procedural rules, as interpreted by the domestic courts. In particular, they must have known that it was not legally possible to request the rectification of the Court of Cassation’s decision of 18 June 2009 since it concerned an amount which was significantly below the statutory threshold for requesting the rectification of such decisions. Therefore, the Court of Cassation’s decision of 24 November 2009, which declared the request for rectification inadmissible, cannot be taken into account in the calculation of the period of six months. Accordingly, the deadline set by Article 35 § 1 of the Convention began to run on 22 July 2009 and expired on 21 January 2010 at midnight. The present application was lodged on 19 February 2010, that is after the expiry of the aforementioned period (see Alkış v. Turkey (dec.), no. 17016/06, 10 January 2012).
31. It follows that the application should be declared inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and that it must therefore be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 March 2019.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
___________________
[1]. On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.
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