SECOND SECTION
\nDECISION<\/p>\n
Application no.\u00a053388\/11
\nZ\u00fcnb\u00fcl D\u00dcZ
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 29\u00a0May 2018 as a Committee composed of:<\/p>\n
LediBianku, President,
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 15\u00a0June 2011,<\/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 applicant, Ms Z\u00fcnb\u00fclD\u00fcz, is a Turkish national, who was born in\u00a01953 and lives in Istanbul. She was represented before the Court by Ms\u00a0N.\u00a0Oran, a lawyer practising in Istanbul.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 6 April 2000 the applicant\u2019s son S.D., a telecommunications technician, fell down an elevator shaft at his work place and lost his life.<\/p>\n 1.\u00a0\u00a0Criminal proceedings<\/em><\/p>\n 5.\u00a0\u00a0Criminal charges were brought against H.E., the owner of the building where the applicant\u2019s 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\u00a0455 \u00a7 1 of the Turkish Criminal Code in force at the material time.<\/p>\n 6.\u00a0\u00a0On 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.<\/p>\n 7.\u00a0\u00a0At an unspecified date the public prosecutor\u2019s 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\u00a0no.\u00a05237) that had entered into force in June\u00a02005.<\/p>\n 8.\u00a0\u00a0On 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.<\/p>\n 9.\u00a0\u00a0On 26 March 2007 the Court of Cassation quashed that judgment on purely procedural grounds.<\/p>\n 10.\u00a0\u00a0On 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.<\/p>\n 11.\u00a0\u00a0On 23 June 2008 the Court of Cassation upheld that judgment.<\/p>\n 2.\u00a0\u00a0Compensation proceedings<\/em><\/p>\n 12.\u00a0\u00a0On 30 May 2001 the applicant brought an action for compensation before the Istanbul Labour Court against her son\u2019s employers and the owners of the building where the accident had occurred. She requested 100\u00a0Turkish liras (TRY) plus interest in respect of pecuniary damage, as she had been deprived of her son\u2019s financial support (destektenyoksunkalmatazminat\u0131), and TRY 500 as non-pecuniary damage plus interest.<\/p>\n 13.\u00a0\u00a0An expert group commissioned by the Istanbul Labour Court reported on 27 September 2005 that the applicant\u2019s son had been 20\u00a0% responsible for the accident, and that the remaining responsibility lay with his employers and the owners of the building at issue.<\/p>\n 14.\u00a0\u00a0On 27 April 2006 the Istanbul Labour Court granted the applicant\u2019s 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\u2019s financial support.<\/p>\n 15.\u00a0\u00a0On 9 June 2006 the applicant received TRY 2,000 in respect of non\u2011pecuniary damage, together with interest.<\/p>\n 16.\u00a0\u00a0On 19 December 2006 the Court of Cassation upheld the award of non-pecuniary damage, but quashed the part of the judgment concerning the applicant\u2019s pecuniary damage request. It held in the first place that the applicant had started receiving old age pension only as of 1\u00a0November\u00a02004; 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\u00a0Security Institute to receive survivor\u2019s pension and that her current claim could only evaluated after the finalisation of those proceedings.<\/p>\n 17.\u00a0\u00a0On 18 March 2010 the Istanbul Labour Court found that the applicant had received TRY 972.18 of survivor\u2019s pension for the period she had been deprived of her son\u2019s financial assistance before 1\u00a0November2004. Since the applicant\u2019s 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.<\/p>\n 18.\u00a0\u00a0On 6 December 2010 the Court of Cassation upheld that judgment.<\/p>\n COMPLAINTS<\/strong><\/p>\n 19.\u00a0\u00a0The applicant complained under Article 6 of the Convention that the persons who had been responsible for her son\u2019s death had not been punished as the criminal proceedings initiated against them had become time-barred on account of its undue length.<\/p>\n 20.\u00a0\u00a0She 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\u2019s pension for the rest of her life, which was higher than her old age pension.<\/p>\n 21.\u00a0\u00a0She lastly stated under Article 6 that her non-pecuniary damage had also not been met by the Labour Court as she could not amend (\u0131slah) her initial claim.<\/p>\n 22.\u00a0\u00a0Without 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.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Alleged violation of Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n 23.\u00a0\u00a0The applicant complained of the length of the criminal and civil proceedings at issue under Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by a … tribunal…\u201d<\/p>\n 1.\u00a0\u00a0Length of the criminal proceedings<\/em><\/p>\n 24.\u00a0\u00a0The Court notes that the Government did not submit any specific observations on this complaint.<\/p>\n 25.\u00a0\u00a0The 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, \u00a7 70, ECHR 2004\u2011I). 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.\u00a0Turkey (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 Beyazg\u00fcl v. Turkey, no. 27849\/03, \u00a7\u00a7 36 and 39, 22 September 2009), there is no information in the case file to suggest that the applicant has made such a request.<\/p>\n 19.\u00a0\u00a0In 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 \u00a7\u00a7 3 and 4 of the Convention (see Hafikli, cited above).<\/p>\n 2.\u00a0\u00a0Length of the civil proceedings<\/em><\/p>\n 26.\u00a0\u00a0The Government requested the Court to declare this complaint inadmissible for non-exhaustion of domestic remedies in the light of Law\u00a0no. 6384, which provides for a remedy capable of redressing the Convention grievances of persons who complained about the length of proceedings.<\/p>\n 27.\u00a0\u00a0The Court recalls that it has already examined and declared inadmissible similar complaints for non-exhaustion of domestic remedies (see, for instance, M\u00fcd\u00fcrTurgut and others v. Turkey, no.\u00a04860\/09, \u00a7\u00a7\u00a019\u201126 and 56, 26 March 2013, and Bacak and Others v. Turkey (dec.), no.\u00a018904\/09 and 44 others, \u00a7\u00a7 14 and 15, 11 February 2014). The Court sees no reason to come to a different conclusion in the present case.<\/p>\n 28.\u00a0\u00a0It follows that this part of the application must be rejected under Article\u00a035 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n B.\u00a0\u00a0Alleged violation of Article 2 of the Convention<\/strong><\/p>\n 29.\u00a0\u00a0The applicant complained under Article 6 of the Convention that the persons who held responsibility for her son\u2019s 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\u2019s 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.<\/p>\n 30.\u00a0\u00a0The 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.<\/p>\n 31.\u00a0\u00a0The Government further maintained that the applicant could no longer claim to be a \u201cvictim\u201d 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\u2019s 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.<\/p>\n 32.\u00a0\u00a0The applicant contested the Government\u2019s observations.<\/p>\n 33.\u00a0\u00a0The Court considers at the outset that the applicant\u2019s complaints under this head fall to be examined under Article 2 of the Convention, the relevant part of which reads as follows:<\/p>\n \u201c1.\u00a0Everyone\u2019s right to life shall be protected by law. ….\u201d<\/p>\n 34.\u00a0\u00a0The 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\u2019s complaints under this head are inadmissible in any event for being manifestly ill-founded.<\/p>\n 35.\u00a0\u00a0The Court notes that the general principles concerning the States\u2019 positive obligations to protect the right to life under Article\u00a02 \u00a7\u00a01 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 \u00d6nery\u0131ld\u0131z v. Turkey ([GC], no.\u00a048939\/99, \u00a7\u00a7 89-96, ECHR 2004\u2011XII), and have been further elaborated in many cases that followed (see, for instance, Budayeva and Others v. Russia , nos. 15339\/02 and 4\u00a0others, \u00a7\u00a7\u00a0128-145, ECHR\u00a02008 (extracts); Gen\u00e7arslan v. Turkey ((dec.), no. 62609\/12, \u00a7\u00a7 20 and 21, 14\u00a0March 2017; and Sinim v. Turkey, no. 9441\/10, \u00a7\u00a7 56-65, 6\u00a0June 2017).<\/p>\n 36.\u00a0\u00a0The Court notes that there is nothing in the case file to suggest that the applicant\u2019s 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, \u00d6nery\u0131ld\u0131z, cited above, \u00a7\u00a093; Oruk v.\u00a0Turkey, no. 33647\/04, \u00a7 65, 4 February 2014; and Sinim, cited above, \u00a7\u00a7\u00a062 and 63).<\/p>\n 37.\u00a0\u00a0In 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.\u00a0Bulgaria, no.\u00a023302\/03, \u00a7\u00a073, 24 May 2011; Ciecho\u0144ska v. Poland, no.\u00a019776\/04, \u00a7\u00a066, 14\u00a0June\u00a02011; Sansal v. Turkey (dec.), no.\u00a028732\/09, \u00a7\u00a046, 2\u00a0September\u00a02014; Demir v.\u00a0Turkey (dec.), no.\u00a058200\/10, \u00a7\u00a018, 13\u00a0October\u00a02015; and Gen\u00e7arslan, cited above).<\/p>\n 38.\u00a0\u00a0The 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\u00a0500). However, it rejected her request for pecuniary damage, as it found that she was not in need of her son\u2019s financial support having regard to the entitlements she already received from the Social Security Institute.<\/p>\n 39.\u00a0\u00a0The applicant has not challenged the Istanbul Labour Court\u2019s 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.<\/p>\n 40.\u00a0\u00a0The 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\u2019s 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\u2019s social security records, the Istanbul Labour Court found that she had been in receipt of social security benefits under different forms after her son\u2019s death for her sustenance, and that, therefore, she could not claim any pecuniary damage for having been deprived of her son\u2019s financial support. In the Court\u2019s opinion, there is nothing in the case file to suggest that the labour court\u2019s decision had been arbitrary, nor has the applicant submitted sufficient material or arguments to prove otherwise. In these circumstances, the Court considers the applicant\u2019s 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 \u00a7 1 in paragraph\u00a028 above.<\/p>\n 41.\u00a0\u00a0As for the applicant\u2019s 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.\u00a0Russia, no.\u00a020075\/03, \u00a7 76, 17 December 2009). The Court also notes, however, that the applicant in the instant case did make an estimate of her non\u2011pecuniary 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\u2019s complaints concerning her non-pecuniary damage remain unsubstantiated.<\/p>\n 42.\u00a0\u00a0The Court considers in the light of the foregoing that the applicants\u2019 complaints under this head must be rejected as manifestly ill\u2011founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 21\u00a0June 2018.<\/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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LediBianku SECOND SECTION DECISION Application no.\u00a053388\/11 Z\u00fcnb\u00fcl D\u00dcZ against Turkey The European Court of Human Rights (Second Section), sitting on 29\u00a0May 2018 as a Committee composed of: LediBianku, President, Neboj\u0161a Vu\u010dini\u0107, Jon Fridrik Kj\u00f8lbro, judges, and Hasan Bak\u0131rc\u0131, Deputy Section Registrar,…<\/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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n","protected":false},"excerpt":{"rendered":"