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FOURTH
SECTION
CASE OF MUSTAFA TÜRKOĞLU v. TURKEY
(Application
no. 58922/00)
JUDGMENT
STRASBOURG
8 August 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mustafa Türkoğlu v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R.
Türmen,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 4 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 58922/00) against the
Republic of Turkey lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Turkish national, Mr Mustafa Türkoğlu (“the
applicant”), on 23 May 2000.
- The
applicant was represented by Ms Z. Aşçıoğlu, a
lawyer practising in Ankara. The Turkish Government
(“the Government”) did not designate an Agent for the
purposes of the proceedings before the Court.
- On
24 June 2004 the Court
decided to communicate the application. Applying Article 29 § 3
of the Convention, it decided to rule on the admissibility and merits
of the application at the same time.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
THE FACTS
- The
applicant was born in 1978 and lives in Van.
- On
16 January 1993 the applicant was injured while he was working on the
construction site of a hotel.
A. Proceedings before the Marmaris Criminal Court of
First Instance
- On
18 May 1994 the principal public prosecutor at the Marmaris Criminal
Court of First Instance (“criminal court”) filed a bill
of indictment against A. B. and A. T., the owner-builder and the
master-builder.
- On
28 June 1995 the applicant submitted a petition to the criminal court
and requested to intervene in the proceedings as an intervening
complainant. The criminal court accepted his request.
- On
11 March 1996 and 25 November 1996 the experts who were assigned by
the criminal court submitted their reports. In their reports they
stated that A.B. and E.C. were respectively by 25% and 75%
responsible for the accident.
- Between
25 November 1996 and 25 May 1999 the criminal court examined the
documents submitted by various authorities.
- On
25 May 1999 the criminal court convicted the owner-builder and the
master-builder, under Article 459 § 2 of the Criminal Code, for
having failed to take the necessary measures to prevent the accident
which had resulted in injuries to the applicant. The criminal court
sentenced them to three months’ imprisonment which was
converted to a fine. Thus, E.T. became liable to a fine of 375,000
Turkish liras (TRL) (approximately 1 euro (EUR)) and A.B.
to a fine of TRL 123,333 (approximately EUR 0, 28). The
judgment became final on 6 July 1999.
B. Proceedings before the Marmaris Civil Court of First
Instance
- On
12 April 1995 the applicant brought an action for damages against the
construction company in the Marmaris Civil Court of First Instance
(“first-instance court”).
- On
21 November 1995 the applicant requested the first-instance court to
await the outcome of the criminal proceedings against the
owner builder and the master-builder, pending before the
criminal court. The court requested the case-file in the criminal
proceedings.
- On
8 October 1996 the first-instance court decided to await the outcome
of the criminal proceedings.
- On
26 February 1998 the applicant brought a further action for damages
in the first-instance court against the construction company and the
hotel in which the construction was taking place.
- On
an unspecified date, the first-instance court joined the two cases.
- Meanwhile,
by a judgment which became final on 6 July 1999, the criminal court
convicted the owner builder and the master-builder (see
paragraph 11 above).
- Between
12 April 1995 and 18 October 2001 the first-instance court held
twenty four hearings. During this period, the court requested
medical reports on the applicant and documents from various
administrative authorities. The court examined the expert reports and
heard two witnesses.
- On
18 October 2001 the first-instance court awarded the applicant a
certain sum in damages.
- On
27 December 2001 the defendant party appealed to the Court of
Cassation against the first-instance court’s decision.
- On
5 November 2002 the 21st Chamber of the Court of Cassation
decided to send the case-file to the 13th Chamber of the
Court of Cassation, holding that the latter had jurisdiction over the
case.
- On
25 March 2003 the Court of Cassation quashed the first-instance
court’s decision and held that the case should be dealt with by
the labour courts.
- On
14 October 2003 the Court of Cassation dismissed the defendant
party’s request for rectification.
- On
20 January 2004 the first-instance court, acting in its capacity as a
Labour Court, abided by the Court of Cassation’s decision and
awarded the applicant a sum in damages plus interest at the statutory
rate.
- On
26 January 2004 the defendant party appealed to the Court of
Cassation.
- On
20 May 2004 the defendant party’s appeal was dismissed since
they had failed to pay the postal fees.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
provided in 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...”
- The
Government contested that argument.
A. Admissibility
- The
Government requested the Court to declare the application
inadmissible for failure to comply with the requirement of exhaustion
of domestic remedies and the six-month rule according to Article 35
§3 of the Convention. They submitted that the compensation
proceedings were still pending before the national courts when the
application was introduced with the Court.
30. The
Court reiterates that according to the Convention organs’
constant case-law complaints concerning length of proceedings can be
brought before it before the final termination of the proceedings in
question (see
Todorov v. Bulgaria
(dec.), no. 39832/98, 6 November
2003). Accordingly, the
Government’s objection must be dismissed.
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the period to be taken into consideration began on
12 April 1995 and ended on 20 May 2004, when the Court of Cassation
dismissed the request for appeal. The proceedings lasted more than
nine years and one month before three levels of jurisdiction, which
twice examined the case.
- The
Government maintained that during the second hearing before the
first-instance court, the applicant requested the suspension of the
compensation proceedings in order to wait for the outcome of the
criminal proceedings pending before the criminal court. On 8 October
1996 the first instance court suspended the proceedings.
- Furthermore,
in the Government’s opinion the case was of a complex nature.
In this connection they pointed out that by 20 May 2004 the
first-instance court had held twenty four hearings, heard two
witnesses and requested several documents from the administrative
authorities. It had examined the expert reports and the applicant’s
medical reports.
- The
applicant maintained that the first-instance court was not obliged to
wait for six years and six months pending the outcome of the criminal
proceedings.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among others,
Yalman and Others v. Turkey, no. 36110/97, § 23, 3 June
2004).
36. The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender
v. France [GC], no. 30979/96, §§ 42-46, ECHR
2000 VII).
- The
Court considers that the subject matter of the litigation, namely the
determination of the amount of compensation to be paid to the
applicant was not particularly complex.
- As
regards the conduct of the applicant, the Court observes that,
although the applicant may have contributed to some extent to the
delay in the proceedings by his conduct, for example by requesting
the suspension of the proceedings, this cannot justify the overall
length of the proceedings.
- As
to the conduct of the authorities, the Court notes that, following
the request of the applicant, the first instance court suspended
the compensation proceedings for six years and six months in order to
await the outcome of the criminal proceedings. The criminal court
issued its decision on 25 May 1999, basing itself on the expert
reports which were submitted to it on 11 March 1996 and 25 November
1996. The criminal proceedings in question became final on 6 July
1999.
- However,
the first-instance court waited until 18 October 2001 in order
to determine the amount of damages. The Court notes that the
Government did not advance any explanation for the period of the
first instance court’s inactivity between 6 July 1999
and 18 October 2001, during which period the proceedings remained
stayed pending the outcome of the criminal proceedings. Given that
A.B. and E.T., who were respectively the owner-builder and the
master builder, had strict liability for the damage caused to
the applicant, which the criminal court confirmed in its judgment of
25 May 1999, there was no apparent need to further adjourn the civil
proceedings for more than two years and three months. In any event,
under Turkish law, the first instance court was not bound by the
findings of the criminal courts and therefore did not have to suspend
the proceedings for such a long period of time in order to await the
outcome of the criminal proceedings.
- Furthermore,
the proceedings before the Court of Cassation lasted approximately
one year and nine months. The Court observes that the Court of
Cassation took more than ten months to render its decision on the
jurisdiction dispute. It quashed the first instance court’s
decision since the latter had failed to examine the case in its
capacity as a Labour Court. The Court considers that this period is
also excessive and must be attributed to the domestic authorities.
- The
Court reiterates in this connection that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their legal systems in such a way that their courts can meet each of
the requirements of that provision, including the obligation to
decide cases within a reasonable time (see, among other authorities,
Pélissier and Sassi v. France [GC], no. 25444/94, §
74, ECHR 1999 II)
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 20,000 in respect of pecuniary damage. He
alleged that had the compensation awarded by the first-instance court
been paid at an earlier stage than 2004 he would not have suffered
pecuniary loss resulting from inflation.
- The
Government contested the claim. They submitted that the amount
claimed by the applicant was excessive.
- The
Court considers that there is no causal link between the pecuniary
damage claimed before the Court and the violation found.
Consequently, no award is made under this head.
- The
applicant further claimed a total of EUR 30,000 for non pecuniary
damage.
- The
Government submitted that the amount claimed by the applicant was
excessive.
- The
Court accepts that the applicant suffered non-pecuniary damage such
as distress and frustration on account of the duration of the
proceedings, which cannot be sufficiently compensated by the finding
of a violation. Taking into account the circumstances of the case and
having regard to its case-law, the Court awards the applicant EUR
3,500 under this head.
B. Costs and expenses
- The
applicant did not submit any receipts or invoices indicating the
costs and expenses he had incurred before the Court. He left it to
the Court’s discretion to assess the appropriate amount.
- The
Government maintained that only those expenses which were actually
and necessarily incurred could be reimbursed. In this connection,
they submitted that the applicant and his representative had failed
to submit documents showing the costs and expenses.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into new Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
3,500 (three thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
taxes that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President