SECOND SECTION
\nDECISION<\/p>\n
Application no.12397\/10
\nKaz\u0131m \u0130MAK and Hatun \u0130MAK
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 5\u00a0March 2019 as a Committee composed of:<\/p>\n
Valeriu Gri\u0163co, President,
\nIvana Jeli\u0107,
\nDarian Pavli, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 19 February 2010,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicants, Mr Kaz\u0131m \u0130mak and Ms Hatun \u0130mak, are Turkish nationals, who were born in 1954 and 1958 respectively and live in Tunceli. They were represented before the Court by Mr M. \u015eakar and Mr\u00a0M.\u00a0Karag\u00f6z, lawyers practising in K\u00f6ln and Elaz\u0131\u011f.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n The circumstances of the case<\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background to the case<\/em><\/p>\n 4.\u00a0\u00a0The applicants\u2019 son, \u00d6., was allegedly involved in a terrorist attack carried out by the PKK (the Workers\u2019 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 \u0130.<\/p>\n 5.\u00a0\u00a0On 1 November 1996 the applicants\u2019 son died.<\/p>\n 6.\u00a0\u00a0On an unspecified date, the heirs of \u0130. brought a full remedy action before the Sivas Administrative Court against the Ministry of Interior (\u201cthe Ministry\u201d) to seek compensation of the losses they suffered from their relative\u2019s death.<\/p>\n 7.\u00a0\u00a0On 13 May 1999 the Sivas Administrative Court found in favour of them and partially awarded pecuniary and non-pecuniary damage.<\/p>\n 8.\u00a0\u00a0On 18 October 2001 the Supreme Administrative Court upheld the judgment in question, which thereby became final.<\/p>\n 9.\u00a0\u00a0In the meantime, on 19 April 2000, the Ministry of Finance paid the heirs of \u0130. the amount of 2,690,939,000 Turkish liras (TRL).<\/p>\n 2.\u00a0\u00a0Recovery proceedings initiated against the applicants<\/em><\/p>\n 10.\u00a0\u00a0In 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.<\/p>\n 11.\u00a0\u00a0On 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 of\u0130.<\/p>\n 12.\u00a0\u00a0On 19 May 2007 the operative part of the Kangal Civil Court of First Instance\u2019s judgment was published in a national newspaper.<\/p>\n 13.\u00a0\u00a0On 9 June 2008 the applicants lodged an appeal against the first\u2011instance court\u2019s judgment before the Court of Cassation.<\/p>\n 14.\u00a0\u00a0They 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\u00a0May 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\u2019s decisions, which were in favour of individuals who were in similar circumstances as them, in support of their arguments.<\/p>\n 15.\u00a0\u00a0On 18 June 2009 the Court of Cassation upheld the first-instance court\u2019s judgment without giving an express reply to the applicants\u2019 main argument that they should have been presumed to have disclaimed their late son\u2019s estate.<\/p>\n 16.\u00a0\u00a0On 21 July 2009 the Court of Cassation\u2019s decision was notified to the applicants.<\/p>\n 17.\u00a0\u00a0On 24 November 2009 the Court of Cassation declared the applicants\u2019 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\u00a0Turkish liras\u00a0(TRY)[1] at the material time.<\/p>\n 3.\u00a0\u00a0Enforcement proceedings<\/em><\/p>\n 18.\u00a0\u00a0On 6 December 2007 the Execution Office of Sivas issued a payment order against the applicants for an amount of TRY\u00a011,612.30, which corresponded to the amount awarded by the first-instance court, the interest accrued and enforcement costs.<\/p>\n 19.\u00a0\u00a0The 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.<\/p>\n 20.\u00a0\u00a0In their observations, the Government informed the Court that the debt collection proceedings initiated against the applicants had been discontinued on 21 November 2011.<\/p>\n 21.\u00a0\u00a0The applicants contested the Government\u2019s submissions. They maintained that the injunctions placed on their immovable properties had still not been lifted.<\/p>\n COMPLAINT<\/strong><\/p>\n 22.\u00a0\u00a0The applicants complained in substance under Article 6 \u00a7\u00a01 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.<\/p>\n THE LAW<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 23.\u00a0\u00a0The Government firstly argued that the application was incompatible ratione materiae with the provisions of the Convention because the applicants lacked the status of \u201cvictim\u201d 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\u2019s judgment.<\/p>\n 24.\u00a0\u00a0Secondly, 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\u2019s 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.<\/p>\n 25.\u00a0\u00a0The 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\u2019s 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\u2019s decision of 18 June 2009, which had been notified to the applicants\u2019 lawyer on 21 July 2009.<\/p>\n 26.\u00a0\u00a0Finally, the Government maintained that the application was in any event manifestly ill-founded under Article 35 \u00a7 3 of the Convention.<\/p>\n 27.\u00a0\u00a0The applicants contested the Government\u2019s arguments and maintained that they had complied with all of the admissibility criteria.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 28.\u00a0\u00a0The Court finds it unnecessary to examine all of the Government\u2019s 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 Gojevi\u0107-Zrni\u0107 and Man\u010di\u0107 v. Croatia (dec.), no.\u00a05676\/13, 17 March 2015).<\/p>\n 29.\u00a0\u00a0In 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).<\/p>\n 30.\u00a0\u00a0Turning to the present case, the Court notes that the final domestic decision within the meaning of Article 35 \u00a7 1 of the Convention is the Court of Cassation\u2019s decision of 18 June 2009, notified to the applicants on 21\u00a0July 2009 (see paragraph 16 above). It is from this date that the six\u2011month period began to run. The applicants\u2019 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\u2019s 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\u2019s 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 \u00a7 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\u00a0February 2010, that is after the expiry of the aforementioned period (see\u00a0Alk\u0131\u015f v. Turkey (dec.), no. 17016\/06, 10 January 2012).<\/p>\n 31.\u00a0\u00a0It follows that the application should be declared inadmissible for non-compliance with the six-month rule set out in Article 35 \u00a7 1 of the Convention, and that it must therefore be rejected pursuant to Article\u00a035 \u00a7\u00a04.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 28 March 2019.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Valeriu Gri\u0163co ___________________<\/p>\n [1].\u00a0\u00a0On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n