Last Updated on November 2, 2019 by LawEuro
SECOND SECTION
DECISION
Application no.7280/13
YücelCİDDİ and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 March 2018 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 12 December 2012,
Having regard to the partial decision of 8 April 2014,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 3 October 2001 the applicants’ father was hit by a car while he was crossing a street. On the same date, he succumbed to his injuries and died.
1. Criminal proceedings
4. Criminal proceedings were brought against M.S.A., who had hit the applicants’ father while driving his company car, for causing death by negligence.
5. According to an expert report dated 25 April 2002 prepared by a university professor who was a former traffic expert at the Forensic Medicine Institute (Adli Tıp KurumuTrafikİhtisasDairesi), the driver had been 37.5% responsible for the accident, and the remaining responsibility lay with the applicants’ father, who had been hit when crossing the street while the pedestrian “don’t walk” red light was showing.
6. In a report subsequently prepared by the traffic branch of the Forensic Medicine Institute on 16 October 2002, the driver was found to have been only 25% responsible for the accident.
7. On 27 December 2002 the Istanbul Criminal Court of First Instance found M.S.A. guilty of causing death by negligence, and imposed a fine on him.
8. Following an appeal by the parties, on 8 June 2005 the Court of Cassation quashed that judgment on procedural grounds and remitted it to the Istanbul Criminal Court of First Instance.
9. On 24 March 2006 the Istanbul Criminal Court of First Instance again sentenced M.S.A. to a fine; that judgment was also quashed by the Court of Cassation on 17 April 2008 on procedural grounds.
10. On 25 May 2009 the Istanbul Criminal Court of First Instance decided to discontinue the proceedings, as the prosecution of the offence in question had become time-barred. On 14 March 2012 the Court of Cassation upheld that judgment. The applicants claim to have learned of that decision on 30 October 2012.
2. Civil proceedings
11. On 18 July 2002 the applicants, together with their mother Vasfiye Ciddi, lodged a claim before the Istanbul Civil Court of First Instance for compensation against (i) the driver, M.S.A., (ii) M.S.A.’s employer (that is to say, the company that employed him), which owned the car which M.S.A. had been driving at the time of the accident, and (iii) the latter’s insurance company. They requested a total of 25,000,000,000 Turkish liras (TRL) in respect of non-pecuniary damage, and TRL 25,000,000,000 in respect of pecuniary damage.
12. On 29 May 2003 the Istanbul Civil Court of First Instance decided to suspend the compensation proceedings pending the outcome of the criminal proceedings.
13. An expert report submitted to the Istanbul Civil Court of First Instance on 29 September 2009 found the driver M.S.A. to have been 25% responsible for the accident, in line with the reports submitted to the criminal case file.
14. On 5 October 2010 the Istanbul Civil Court of First Instance accepted the applicants’ claim in part and, having regard to the limited degree of M.S.A.’s responsibility for the accident, awarded them a total of 12,500 Turkish liras (TRY[1]) in respect of non-pecuniary damage and TRY 2,490 in respect of pecuniary damage, plus interest on both amounts running from the date of the accident.
15. On 4 October 2011 the applicants’ mother, VasfiyeCiddi, died, leaving the three applicants as her sole heirs.
16. On 12 and 17 October 2011 the applicants received TRY 43,000 (approximately 17,160 euros (EUR) at the material time) and TRY 7,523 (approximately EUR 2,950 at the material time), respectively, from the defendants in respect of pecuniary and non-pecuniary damage, in accordance with the judgment of the Istanbul Civil Court of First Instance.
17. On 15 February 2012 the Court of Cassation upheld the judgment of the first-instance court. That decision was served on the applicants on 12 June 2012.
3. Developments following the lodging of the present application with the Court
18. On 8 April 2014 the Court decided to declare the applicants’ complaint under Article 6 § 1 concerning the length of the compensation proceedings inadmissible for failure to exhaust the available domestic remedies, in the light of its conclusions in the case of Turgut and Others v. Turkey ((dec.), no.4860/09, §§ 19-58).
19. Accordingly, the applicants applied to the Compensation Commission established by Law no. 6384 in respect of their complaints concerning the length of the compensation proceedings.
20. On 1 July 2015 the applicants were paid TRY 8,300 (approximately EUR 2,760 at the material time) by the Ministry of Justice in respect of non‑pecuniary damage arising from the undue lengthiness of the compensation proceedings.
COMPLAINTS
21. The applicants complained under Article 6 § 1 of the Convention of the excessive length of the criminal proceedings.
22. They also complained under the same provision of the unfairness of the criminal and civil proceedings at issue. They claimed in this connection that the criminal proceedings had been discontinued for having become time‑barred, and that M.S.A. had escaped any criminal sanctions, despite the fact that their father had lost his life owing to his negligence. They also complained of the inadequacy of the amount of compensation awarded by the Istanbul Civil Court of First Instance, which had, moreover, lost its value in the ten years that it had taken the civil court to deliver its judgment.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings
23. The applicants complained of an infringement of their right to a fair trial on account of the length of the criminal proceedings at issue. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …”
24. 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, as 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 applicants made such a request.
25. 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).
B. The alleged violation of Article 2 of the Convention
26. The applicants complained under Article 6 § 1 that neither the criminal proceedings nor the civil proceedings in respect of the accident had been conducted fairly. They argued in particular that the criminal proceedings had been discontinued for having become time-barred and that the compensation awarded by the civil court had been insufficient.
27. The Court considers at the outset that the applicants’ complaints should be examined from the standpoint of Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. ….”
28. The Court reiterates in this connection that in the event of serious injury or death, the duty to safeguard the right to life under Article 2 requires the State to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see, for instance, Dodov v. Bulgaria, no. 59548/00, § 83, 17 January 2008, and Ciechońska v. Poland, no. 19776/04, § 67, 14 June 2011). Although this obligation may require the provision of a criminal-law remedy in certain special circumstances (see, for instance, Öneryıldız v. Turkey, [GC], no. 48939/99, §§ 93-96, ECHR 2004‑XII; Mehmet Şentürk and BekirŞentürk v. Turkey, no. 13423/09, §§ 104-106, ECHR 2013; Oruk v. Turkey, no. 33647/04, §§ 50 and 65, 4 February 2014; Aydoğdu v. Turkey, no. 40448/06, §§ 62-64 and §§ 87‑88, 30 August 2016; and Gençarslan v. Turkey (dec.), no. 62609/12, §§ 19-22, 14 March 2017), the Court stresses that neither Article 2 nor any other provision of the Convention guarantees an applicant the right to secure the prosecution and conviction of a third party or the right to “private revenge” (see Perez, cited above, § 70, and Öneryıldız, cited above, § 147). Where death results from negligence, for instance, the obligation under Article 2 may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see, for instance, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I, and Ciechońska, cited above, § 66).
29. The Court notes that the applicants’ father lost his life as the result of a road traffic accident. The domestic judicial authorities established that the accident had occurred partly as a result of negligence on the part of M.S.A. and that it had not been intentional (see paragraphs 7 and 14 above). The Court has no reason to doubt that finding, which the applicants have also not challenged. There is, moreover, no information in the case file to suggest that the traffic accident at issue had involved any exceptional circumstances, such as in the case of Sinim v. Turkey(no. 9441/10, §§ 60‑70, 6 June 2017), that would necessitate a criminal-law response to satisfy the requirements of Article 2. 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, cited above, § 66; 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).
30. The Court observes in this connection that the applicants made use of a civil remedy before the Istanbul Civil Court of First Instance, and that that court established the facts and the responsibility of the parties for the accident and provided the applicants with some redress (see paragraphs 11‑17 above). Accordingly, on 12 and 17 October 2011 the applicants received a total of approximately EUR 20,110 from the defendants in respect of the pecuniary and non-pecuniary damage that they had sustained in connection with the death of their father.
31. The applicants have not challenged the Istanbul Civil Court of First Instance’s ability to establish the facts and responsibility in respect of the accident. They have, however, complained of the inadequacy of the compensation awarded by the civil court.
32. The Court reiterates in this connection that the amount of compensation afforded to an applicant for damage caused is an important indicator for assessing whether the domestic judicial authorities have provided an effective response to the alleged violation of a Convention right (see, mutatis mutandis, Kotelnikov v. Russia, no. 45104/05, § 109, 12 July 2016). As there is no standard by which pain and suffering, physical discomfort and mental distress and anguish can be measured in terms of money, the Court is mindful that the task of making an estimate of damages to be awarded is a difficult one (see Shilbergs v. Russia, no. 20075/03, § 76, 17 December 2009). The Court therefore assesses the reasonableness of the amount awarded in the light of all the circumstances of the case, also taking into account awards it has made in similar cases in the past.
33. Turning to the facts before it, the Court acknowledges that the death of their father must have caused the applicants great suffering. It further acknowledges that the applicants were not awarded the full amount of compensation that they had sought before the Istanbul Civil Court of First Instance. The Court also notes, however, that the applicants nevertheless received a sum of approximately EUR 20,110 from the defendants to compensate them for the damage resulting from their father’s death. According to the Court’s calculations, about 83% of that sum – that is to say approximately EUR 16,690 – related to the non‑pecuniary damage that they had sustained. Taking into account the fact that the applicants’ father himself was found to be some 75% responsible for the accident (as established by the expert reports submitted to the criminal and civil case files), and the fact that the amount in question is close to the awards made by the Court in other cases involving non‑intentional infringements of the right to life (see, for instance, Ciechońska, cited above, § 87; Banel v. Lithuania, no. 14326/11, § 77, 18 June 2013; andGençarslan, cited above, § 26), the Court cannot accept the argument that the compensation they received was inadequate.
34. It follows that the applicants’ complaints under this head must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of Article 1 of Protocol No. 1 to the Convention
35. The applicants claimed under Article 6 § 1 of the Convention that their initial compensation claim had lost its value during the time that it had taken the civil court to decide on their case because of the high inflation rate.
36. The Court considers, in the light of its practice in similar cases (see, for instance, Okçu v. Turkey, no. 39515/03, §§ 47-61, 21 July 2009), that the present complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention, the relevant part of which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
37. The Court notes that on 5 October 2010 the Istanbul Civil Court of First Instance awarded the applicants a total of TRY 14,990 in respect of their pecuniary and non-pecuniary damage arising from the death of their father, plus interest running from the date of the accident (that is to say 3 October 2001). According to the inflation calculation tool provided on the website of the Turkish Central Bank,[2] that amount would have been worth approximately TRY 46,680 in October 2011. However, the applicants received a total of TRY 50,523 in October 2011 (see paragraph 16 above). The legal interest applied to the award therefore sufficiently offset the negative effects of inflation, contrary to the arguments of the applicants.
38. It follows that the applicants’ complaints under this head must also 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 5 April 2018.
Hasan Bakırcı Robert Spano
Deputy Registrar President
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Appendix
1. Yücel CİDDİ is a Turkish national who was born in 1980, lives in Istanbul and is represented by M. Koçer.
2. Kader İdil CİDDİ is a Turkish national who was born in 1985, lives in Istanbul and is represented by M. Koçer.
3. Sibel CİDDİ is a Turkish national who was born in 1985, lives in Istanbul and is represented by M. Koçer.
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[1] On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.
[2]. See http://www.tcmb.gov.tr/. This tool adjusts any sum of money for inflation on the basis of the Consumer Price Index and thus measures the buying power of the Turkish lira over time.
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