Last Updated on August 23, 2019 by LawEuro
Information Note on the Court’s case-law 222
October 2018
Kurşun v. Turkey – 22677/10
Judgment 30.10.2018 [Section II]
Article 6
Civil proceedings
Article 6-1
Access to court
Excessively formalistic interpretation of procedural rule: violation
Article 1 of Protocol No. 1
Positive obligations
Shortcomings in criminal proceedings on account of oil refinery explosion resulting in property damage: inadmissible
Facts – The applicant’s civil claim against Tüpraş Batman Oil Refinery (herafter “Tüpraş”) following an explosion which had damaged his property, was dismissed as being time-barred.
Law
Article 6 § 1 of the Convention: Under Article 60 § 1 of the former Code of Obligations, all tort claims had to be brought within one year of the damage and the identity of those responsible for that damage having becoming “known”.
The Court of Cassation had found that the time-limit in the applicant’s case had started running on the date of the explosion. It had not relied on any precedents in support of its interpretation and had provided no reasoning as to why it had diverged from decisions delivered by another chamber of its court in circumstances that were, in substance, identical to those of the applicant and where the time-limit rule had been interpreted in the applicants’ favour.
In the immediate aftermath of the explosion, the information as to its cause and origin had been limited to mere speculation. Numerous commissions had been established and studies had been conducted by experts in the field in order to shed light on the circumstances of the explosion and determine who had been responsible for it. Those experts had acknowledged that the explosion had been a highly complex phenomenon, and the technical limitations encountered had prevented rapid progress in establishing the circumstances surrounding it, including the identity of the entity responsible.
The Court of Cassation’s interpretation and application of the relevant time-limit rule, whereby the applicant had been required to institute proceedings at a moment when he could not realistically have had sufficient knowledge of the cause of the damage or the identity of those responsible, seemed very formalistic, bearing particularly in mind the possible practical and financial implications of such requirement for the applicant.
The strict application by the domestic courts of a procedural rule, which seemingly lacked clear and consistent precedential support, had deprived the applicant of the right of access to a court to have his claims for compensation examined, particularly given the extraordinary circumstances of the incident underlying the applicant’s claim.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The effective exercise of the right protected by Article 1 of Protocol No. 1 did not depend merely on the State’s duty not to interfere, but might require positive measures of protection. The nature and the scope of the positive obligations varied depending on the circumstances.
(a) Whether there were effective remedies available to the applicant – The duty to make available an effective criminal-law remedy as such did not have the same significance with regard to destroyed property as in the event of loss of life in that particular context. Even though the explosion in the present case involved a complex incident on a vast scale, the stringent procedural requirements originally developed for use in cases involving the use of lethal force, and applied exceptionally to the very special circumstances as those arising in cases such as Öneryıldız v. Turkey, could not be readily applied in the circumstances of the applicant’s case where his complaint concerned mere property damage.
A number of administrative and technical commissions had been set up by the respondent State soon after the explosion in order to shed light on the circumstances of the incident. Based on the findings of those commissions, the public prosecutor’s office had initiated an investigation, of its own motion, into the liability of a number of serving Tüpraş executives for the incident. The ensuing criminal proceedings had resulted first in the acquittal of the defendants, and subsequently in the discontinuation of the proceedings altogether for having become time-barred.
Having regard to their limited scope, which had only targeted a number of serving Tüpraş officials, the criminal proceedings at issue had from the beginning been inadequate to establish the full extent of the (potential) negligence. That said, the applicant had not explained how the shortcomings in those criminal proceedings had prevented him from asserting his property rights by other means, such as before the civil or administrative courts, which could, in theory, have established the liability of any authorities or entities in connection with the explosion. An action for compensation against Tüpraş and the responsible State authorities before the civil and administrative courts would not only have been capable, but perhaps also have been more suitable, to provide the applicant with adequate redress.
In those circumstances, having particular regard to the nature of the damage involved, the applicant’s complaint that he had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings was manifestly ill-founded.
Conclusion: inadmissible (manifestly ill-founded).
(b) Whether the applicant had exhausted the available remedies – The applicant had not requested a criminal investigation to establish the responsibility of any State authorities or explained why he had refrained from taking such action. Nor had he instituted administrative proceedings for compensation against the relevant public authorities. He had not provided any justification that would have absolved him from the requirement to exhaust that remedy. The administrative courts were, in principle, empowered to establish the facts of the case, to attribute responsibility for the events in question and to deliver enforceable decisions. Furthermore, the effectiveness of that remedy had not depended on the outcome of pending criminal proceedings, nor had access to it been hindered by acts or omissions on the part of the authorities.
The applicant had not pursued all available remedies relevant to his complaint concerning the failure of the State authorities to take the necessary measures to protect his right to property.
Conclusion: inadmissible (failure to exhaust domestic remedies).
Article 41: EUR 2,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See Öneryıldız v. Turkey [GC], 48939/99, 30 November 2004, Information Note 69; see also Zubac v. Croatia [GC], 40160/12, 5 April 2018, Information Note 217; Eşim v. Turkey, 59601/09, 17 September 2013; Sefer Yılmaz and Meryem Yılmaz v. Turkey, 611/12, 17 November 2015, Information Note 190; Çakmakçı v. Turkey (dec.), 3952/11, 2 May 2017; Teker v. Turkey (dec.), 2272/11, 20 June 2017; and Budayeva and Others v. Russia, 15339/02, 20 March 2008, Information Note 106)
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