Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 53388/11
Zünbül DÜZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Committee composed of:
LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 June 2011,
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 applicant, Ms ZünbülDüz, is a Turkish national, who was born in 1953 and lives in Istanbul. She was represented before the Court by Ms N. Oran, a lawyer practising in Istanbul.
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, may be summarised as follows.
4. On 6 April 2000 the applicant’s son S.D., a telecommunications technician, fell down an elevator shaft at his work place and lost his life.
1. Criminal proceedings
5. Criminal charges were brought against H.E., the owner of the building where the applicant’s son lost his life, and A.T.T., the person who had been overseeing the works at that building, for causing death by negligence under Article 455 § 1 of the Turkish Criminal Code in force at the material time.
6. On 28 April 2004 the defendants were found guilty as charged by the Istanbul Criminal Court of First Instance on account of their failure to repair the elevator and to inform S.D. of the defect in the elevator, respectively.
7. At an unspecified date the public prosecutor’s office attached to the Court of Cassation remitted the case to the first instance court for a reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005.
8. On 28 July 2006 the Istanbul Criminal Court of First Instance convicted the defendants under the relevant provision of the former Criminal Code, which were more favourable in the circumstances.
9. On 26 March 2007 the Court of Cassation quashed that judgment on purely procedural grounds.
10. On 17 October 2007 the Istanbul Criminal Court of First Instance discontinued the proceedings as the prosecution of the offence in question had become time-barred.
11. On 23 June 2008 the Court of Cassation upheld that judgment.
2. Compensation proceedings
12. On 30 May 2001 the applicant brought an action for compensation before the Istanbul Labour Court against her son’s employers and the owners of the building where the accident had occurred. She requested 100 Turkish liras (TRY) plus interest in respect of pecuniary damage, as she had been deprived of her son’s financial support (destektenyoksunkalmatazminatı), and TRY 500 as non-pecuniary damage plus interest.
13. An expert group commissioned by the Istanbul Labour Court reported on 27 September 2005 that the applicant’s son had been 20 % responsible for the accident, and that the remaining responsibility lay with his employers and the owners of the building at issue.
14. On 27 April 2006 the Istanbul Labour Court granted the applicant’s request for non-pecuniary damage in full, but dismissed her pecuniary damage request as she had been in receipt of an old age pension from the Social Security Institute and, therefore, had not depended on her son’s financial support.
15. On 9 June 2006 the applicant received TRY 2,000 in respect of non‑pecuniary damage, together with interest.
16. On 19 December 2006 the Court of Cassation upheld the award of non-pecuniary damage, but quashed the part of the judgment concerning the applicant’s pecuniary damage request. It held in the first place that the applicant had started receiving old age pension only as of 1 November 2004; therefore, her claim for pecuniary damage for the period preceding that date had to be taken into consideration. It held secondly that the applicant had in the meantime brought proceedings against the Social Security Institute to receive survivor’s pension and that her current claim could only evaluated after the finalisation of those proceedings.
17. On 18 March 2010 the Istanbul Labour Court found that the applicant had received TRY 972.18 of survivor’s pension for the period she had been deprived of her son’s financial assistance before 1 November2004. Since the applicant’s pecuniary loss for the relevant period had been calculated at TRY 677.10 by an expert, she was not entitled to receive any more pecuniary damage.
18. On 6 December 2010 the Court of Cassation upheld that judgment.
COMPLAINTS
19. The applicant complained under Article 6 of the Convention that the persons who had been responsible for her son’s death had not been punished as the criminal proceedings initiated against them had become time-barred on account of its undue length.
20. She further complained under the same provision that the failure of the domestic courts to conduct the compensation proceedings speedily had caused her pecuniary loss. She claimed in this regard that had the proceedings been terminated before 1 November 2004, that is before she had started receiving old age pension from the Social Security Institute, she would have been entitled to a survivor’s pension for the rest of her life, which was higher than her old age pension.
21. She lastly stated under Article 6 that her non-pecuniary damage had also not been met by the Labour Court as she could not amend (ıslah) her initial claim.
22. Without referring to any provisions of the Convention, she also claimed that her property rights had also been infringed on account of the death of her son.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention
23. The applicant complained of the length of the criminal and civil proceedings at issue under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by a … tribunal…”
1. Length of the criminal proceedings
24. The Court notes that the Government did not submit any specific observations on this complaint.
25. The Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Therefore, a victim of an offence may only invoke his or her fair trial rights in connection with the criminal proceedings against the offender if he or she has joined those proceedings as a civil party to obtain damages or to otherwise protect his or her civil rights (see, for instance, Hafikli v. Turkey (dec.), no. 13394/12, 30 August 2016). The Court notes that while the Turkish Code of Criminal Procedure in force at the material time allowed civil parties to request compensation during criminal proceedings (see Beyazgül v. Turkey, no. 27849/03, §§ 36 and 39, 22 September 2009), there is no information in the case file to suggest that the applicant has made such a request.
19. In these circumstances, and relying on its settled case-law on this matter, the Court concludes that this part of the application is incompatible rationemateriae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention (see Hafikli, cited above).
2. Length of the civil proceedings
26. The Government requested the Court to declare this complaint inadmissible for non-exhaustion of domestic remedies in the light of Law no. 6384, which provides for a remedy capable of redressing the Convention grievances of persons who complained about the length of proceedings.
27. The Court recalls that it has already examined and declared inadmissible similar complaints for non-exhaustion of domestic remedies (see, for instance, MüdürTurgut and others v. Turkey, no. 4860/09, §§ 19‑26 and 56, 26 March 2013, and Bacak and Others v. Turkey (dec.), no. 18904/09 and 44 others, §§ 14 and 15, 11 February 2014). The Court sees no reason to come to a different conclusion in the present case.
28. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged violation of Article 2 of the Convention
29. The applicant complained under Article 6 of the Convention that the persons who held responsibility for her son’s death had not been punished by the criminal courts and that the amounts of pecuniary and non-pecuniary damages awarded by the Istanbul Labour Court to remedy her losses in connection with her son’s death had been unsatisfactory. She also claimed in this connection that her property rights had been infringed on account of the death of her son.
30. The Government argued that since the present case did not involve an intentional infringement of the right to life, a claim for compensation before civil courts would be fully capable of establishing the facts and responsibility for the accident, and providing adequate redress. Therefore, the complaints concerning the criminal proceedings were incompatible rationemateriaewith the provisions of the Convention. They also considered that since the applicant had not intervened in the criminal proceedings, she had failed to exhaust the available domestic remedies in relation to her complaints concerning those proceedings, and that, in any event, those complaints had been lodged outside the six-month time-limit.
31. The Government further maintained that the applicant could no longer claim to be a “victim” of a violation of her Convention rights within the meaning of Article 34, as the Istanbul Labour Court had duly identified the persons responsible for her son’s death, and had awarded her with adequate compensation for her non-pecuniary damage arising from the death of her son. Moreover, her pecuniary losses had been met by the Social Security Institute.
32. The applicant contested the Government’s observations.
33. The Court considers at the outset that the applicant’s complaints under this head fall to be examined under Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. ….”
34. The Court further considers that it is not necessary to examine all the preliminary objections on grounds of inadmissibility raised by the Government, as the applicant’s complaints under this head are inadmissible in any event for being manifestly ill-founded.
35. The Court notes that the general principles concerning the States’ positive obligations to protect the right to life under Article 2 § 1 of the Convention, including those concerning the judicial response to be provided by the State in the event of serious injury or death caused by an accident, have been set out by the Grand Chamber in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 89-96, ECHR 2004‑XII), and have been further elaborated in many cases that followed (see, for instance, Budayeva and Others v. Russia , nos. 15339/02 and 4 others, §§ 128-145, ECHR 2008 (extracts); Gençarslan v. Turkey ((dec.), no. 62609/12, §§ 20 and 21, 14 March 2017; and Sinim v. Turkey, no. 9441/10, §§ 56-65, 6 June 2017).
36. The Court notes that there is nothing in the case file to suggest that the applicant’s son had been killed intentionally or that he had lost his life in suspicious circumstances. It rather appears from the information before the Court, and in particular from the investigation conducted by the domestic judicial authorities into the incident, that the death had resulted from negligence. The Court further notes that there is nothing in the case file to suggest that the negligence at issue was of a nature that went beyond mere judgment of error or carelessness, and the applicant has not claimed otherwise (see, to the contrary, Öneryıldız, cited above, § 93; Oruk v. Turkey, no. 33647/04, § 65, 4 February 2014; and Sinim, cited above, §§ 62 and 63).
37. In these circumstances, while the Court acknowledges the shortcomings in the criminal proceedings at issue which led to their discontinuation, it considers in the light of its case-law that Article 2 of the Convention did not necessarily require a criminal-law remedy in respect of the facts and could be satisfied if the applicants had at their disposal an effective civil-law remedy (see Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; Ciechońska v. Poland, no. 19776/04, § 66, 14 June 2011; Sansal v. Turkey (dec.), no. 28732/09, § 46, 2 September 2014; Demir v. Turkey (dec.), no. 58200/10, § 18, 13 October 2015; and Gençarslan, cited above).
38. The Court observes in this connection that the applicant made use of a civil remedy before the Istanbul Labour Court. That court established the facts and the responsibility of the parties for the accident and awarded the applicant with the full amount of non-pecuniary damage she had requested (TRY 500). However, it rejected her request for pecuniary damage, as it found that she was not in need of her son’s financial support having regard to the entitlements she already received from the Social Security Institute.
39. The applicant has not challenged the Istanbul Labour Court’s ability to establish the facts and responsibility in respect of the accident. She has, however, complained of the inadequacy of the pecuniary and non-pecuniary damage awarded by that court, and argued that she had not been able to amend her original request in respect of her non-pecuniary damage.
40. The applicant argued that had the proceedings been concluded speedily before 2004, that is before she had started receiving old age pension, she would have been entitled to receive survivor’s pension in connection with the death of her son for the rest of her life, which was higher than the old age pension. The Court notes that after examining the applicant’s social security records, the Istanbul Labour Court found that she had been in receipt of social security benefits under different forms after her son’s death for her sustenance, and that, therefore, she could not claim any pecuniary damage for having been deprived of her son’s financial support. In the Court’s opinion, there is nothing in the case file to suggest that the labour court’s decision had been arbitrary, nor has the applicant submitted sufficient material or arguments to prove otherwise. In these circumstances, the Court considers the applicant’s complaint concerning her pecuniary damage to be speculative and unfounded. To the extent that the applicant claims to have been prejudiced by the failure of the Istanbul Labour Court to determine her compensation claim speedily, the Court notes that that matter has already been addressed under Article 6 § 1 in paragraph 28 above.
41. As for the applicant’s complaint concerning her non-pecuniary damage, the Court notes that unlike pecuniary damage, non-pecuniary damage is not readily quantifiable, as there is no standard by which pain and suffering, physical discomfort and mental distress and anguish can be measured in terms of money. For that reason, the task of making an estimate of non-pecuniary damage to be awarded is a difficult one (see Shilbergs v. Russia, no. 20075/03, § 76, 17 December 2009). The Court also notes, however, that the applicant in the instant case did make an estimate of her non‑pecuniary damage arising from the loss of her son when bringing her case before the Istanbul Labour Court, and she was subsequently awarded that amount in full by the labour court. While she complained of the inadequacy of that award and her inability to increase it, she did not explain why she had not been able to demand her non-pecuniary damage in full in the first place, or why her damage had increased over time. Nor did she claim that she had been prevented from increasing her original claim before domestic courts despite having had valid reasons for doing so. In these circumstances, the applicant’s complaints concerning her non-pecuniary damage remain unsubstantiated.
42. The Court considers in the light of the foregoing that the applicants’ complaints under this head must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 June 2018.
Hasan Bakırcı LediBianku
Deputy Registrar President
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