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SECOND
SECTION
CASE OF SEBAHATTİN EVCİMEN v. TURKEY
(Application
no. 31792/06)
JUDGMENT
STRASBOURG
23
February 2010
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 Sebahattin Evcimen v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31792/06) 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 Sebahattin
Evcimen (“the applicant”), on 1 August 2006.
- The
applicant was represented by Mr Z. Edebali, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
The case was given priority under Rule 41 of the Rules of the Court.
- On
15 January 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- The
applicant was born in 1959 and lives in Istanbul.
- In
1989 the applicant started working at a privately owned factory in
the city of Ordu. On 4 February 1993 he had an accident in the
factory and seriously injured his leg. Subsequently, on 13
August 1993 the applicant's employment at the factory was terminated
on the ground that he had failed to report to work between 2 and 13
August 1993 without a reason.
- On
4 June 1996, the applicant brought a legal action against the factory
before the Ordu Civil Court of General Jurisdiction (“the Civil
Court”) and claimed pecuniary compensation in respect of the
accident. In the meantime, in 1997 the applicant's leg had to be
amputated following the diagnosis of a malignant tumour in his
injured leg.
- On
11 November 1998, while the proceedings were pending before the Civil
Court, the applicant brought another action before the Ordu Labour
Court (“the Labour Court”) against the factory and asked
the court to issue a declaration to the effect that the incident had
been an “occupational accident”.
- On
5 February 1999, at the applicant's request, the Civil Court decided
to adjourn its examination of the compensation claim pending the
outcome of the proceedings before the Labour Court.
- On
17 December 1999 the Labour Court, relying on two expert reports,
decided that the accident had been occupational. Nevertheless, the
decision of the Labour Court was quashed on 17 February 2000 by the
Court of Cassation, which held that the Social Security Institution
(Sosyal Sigortalar Kurumu “the SSK”) should also
be a party to the proceedings.
- Proceedings
recommenced before the Labour Court, which found on 17 October
2000 that the applicant had introduced the same claim in 1994, and
dismissed the case.
- On
26 March 2001 the Court of Cassation quashed the decision of the
Labour Court and pointed to the fact that the case which had been
brought in 1994 had had different parties and its subject matter had
also been different to that of the present one.
- On
12 October 2001, after a further review of the case, the Labour Court
gave a decision and held that the accident had been occupational.
- On
1 February 2002 the Court of Cassation quashed the judgment once more
and held that the Labour Court should have considered whether a
causal link existed between the tumour in the applicant's leg and the
accident. The Court of Cassation considered that this could be done
by obtaining a report from the Forensic Medicine Institution (“the
Institution”).
- On
26 April 2002, after re-examining the case, the Labour Court
confirmed its judgment of 12 October 2001. In its decision, the
Labour Court maintained that any causal link between the tumour and
the accident was irrelevant to the case at hand. It considered that
this was a matter for the Civil Court to consider in its examination
of the applicant's compensation claim.
- On
3 July 2002 the Plenary Court of Cassation quashed the Labour Court's
decision of 26 April 2002 and upheld the Court of Cassation decision
of 1 February 2002.
- On
18 October 2002 the Labour Court asked the Institution to draft a
report as required by the Court of Cassation. On 8 November 2002 the
Institution requested the Labour Court to forward to it all medical
reports pertaining to the applicant's medical treatment. Following
the failure of the Labour Court to comply with its request, the
Institution repeated its request on two further occasions. The Labour
Court, which did not comply with the Institution's requests, asked
the Institution to prepare its report on the basis of the reports
already in its possession.
- On
19 March 2004 the Institution prepared its report based on several
medical reports on the applicant delivered by different hospitals
between 1993 and 1997. It concluded that it was not possible to
establish whether the tumour in the leg had been caused by the
accident. In its report the Institution also noted that the
applicant, although warned by the doctors about the gravity of his
condition, had failed to have medical examinations between 1994 and
1997. It concluded that this could also have caused the tumour in the
applicant's leg.
- On
1 September 2004 the applicant submitted to the Labour Court written
objections to the Institution's report. He argued, in particular,
that the report was irrelevant to the examination of his claim and in
any event was based on insufficient data. The applicant further
argued that the Forensic Institution had prepared a negative report
as he had lodged a complaint against the experts regarding the delay
in the submission of their report.
- Based
on the report of the Institution, the Labour Court decided on 10
September 2004 that there was no causal link between the accident and
the tumour in the applicant's leg, and dismissed the case. On
11 October 2004 the applicant appealed and repeated his
objections, mentioned above, to the Institution's report. The
applicant's appeal was rejected by the Court of Cassation 11 April
2005.
- Following
the decision of the Court of Cassation, the Civil Court resumed the
proceedings. On 17 July 2005 the domestic court rejected the
applicant's case based on the decision of the Labour Court dated 10
September 2004. In its decision, it stated that the Labour Court had
had regard to all the documents in the case file, the submissions of
the parties and the medical report of the Forensic Institution which
held that there was no causal link between the tumour in the
applicant's leg and the incident. As a result, by making reference to
the decision of the Labour Court it dismissed the applicant's case.
On 14 February 2006 the Court of Cassation rejected the applicant's
appeal request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he did not have a fair hearing, arguing
that the domestic courts had erred in the establishment of facts and
interpretation of law. He further alleged that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention.
A. The proceedings before the Ordu Labour Court
- The
Court observes that these proceedings ended on 11 April 2005 with the
final decision of the Court of Cassation. As the present application
was lodged on 1 August 2006, the Court notes that the complaints
concerning these proceedings are lodged outside the six-month
time-limit and must be rejected pursuant to Article 35 §§ 1
and 4 of the Convention
B. The proceedings before the Ordu Civil Court of
General Jurisdiction
1. Fairness of proceedings
- The applicant complained under Article 6 § 1 of
the Convention that the proceedings in his case were unfair in that,
in rejecting his compensation claim, the Ordu Civil Court had had
regard to the medical report of the Forensic Medicine Institution,
which was allegedly based on insufficient data.
- The Government contested the applicant's allegations.
In the first place they stated that the domestic courts had not
violated the equality of arms principle as the findings of the
medical report were disclosed to the applicant during the labour
court proceedings, who in return had the opportunity to submit his
counter-arguments. Furthermore, the Government stated that, in
preparing its report, the Forensic Medicine Institution had regard to
the medical history of the applicant and examined several medical
reports issued by a number of different hospitals between 1993 and
1997. According to the Government, after a thorough examination, the
Forensic Medicine Institution concluded that no causal link could be
established between the applicant's fall in 1993 and the amputation
of his leg in 1997. The Government finally stated that there was no
indication of arbitrariness during the domestic proceedings.
- The Court reiterates in the first place that it is not
its task to act as a court of appeal or, as is sometimes said, as a
court of fourth instance, for the decisions of domestic courts.
According to the case-law, the latter are best placed to assess the
credibility of witnesses and the relevance of evidence to the issues
in the case (see, amongst many authorities, Vidal v. Belgium,
22 April 1992, § 32, Series A no. 235 B, and Edwards
v. the United Kingdom, 16 December 1992, § 34, Series A
no. 247 B). The Court further reiterates that the principle of
equality of arms, one of the broader concepts of a fair hearing,
requires each party to be given a reasonable opportunity to present
their case under conditions that do not place them at a substantial
disadvantage vis-à-vis the opponent. The right to
adversarial proceedings means in principle the opportunity for the
parties to have knowledge of and to comment on all evidence adduced
or observations submitted, with a view to influencing the court's
decision (see K.S. v. Finland, no. 29346/95, § 21,
31 May 2001).
- Turning to the facts
of the case, the Court observes that the applicant's complaint about
the reliance of the Labour Court on a medical report, which had
allegedly been based on an incomplete file, concerns the proceedings
which ended on 11 April 2005 and thus falls outside the six months
time-limit laid down in Article 35 § 1 of the Convention. It is
clear from the case file that, in delivering its decision dated 17
July 2005, the Ordu Civil Court of General Jurisdiction solely
referred to the decision delivered by the Labour Court and did not
order any new expertise during this set of proceedings. As the Labour
Court refused to give a declaratory decision certifying that the
applicant had had an occupational accident, the Ordu Civil Court of
General Jurisdiction did not hold the applicant's former employer
financially responsible and refused to award compensation to the
applicant. Following a thorough examination of the case file, the
Court finds no element which might lead it to conclude that the
domestic court acted in an arbitrary or unreasonable manner in
establishing the facts or interpreting the domestic law.
27. In
the circumstances of the case, the Court is of the view that the
proceedings before the Ordu Civil Court of General Jurisdiction
complied with the fairness requirement of Article 6 § 1 of the
Convention. It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
2. As to the length of proceedings
- The
Court observes that the proceedings before the Ordu Civil Court began
on 4 June 1996 and ended on 14 February 2006. They thus lasted nine
years and eight months at two levels of jurisdiction.
- The
Court notes that this complaint 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.
- 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 many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court further reiterates that special
diligence is necessary in employment disputes (see, Ruotolo v.
Italy, judgment of 27 February 1992, Series A no. 230-D, p.
39, § 17).
- 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, cited above).
- Turning
to the particular circumstances of the present case, the Court
observes that the applicant initiated compensation proceedings before
the Ordu Civil Court on 4 June 1996. Subsequently, while the
proceedings were still pending, he initiated another set of
proceedings, this time before the Ordu Labour Court, seeking a
declaratory decision to the effect that the incident in dispute had
been an occupational accident. He also lodged a request that the Ordu
Civil Court await the outcome of the proceedings before the Ordu
Labour Court. As a result, the Civil Court awaited the outcome of the
Labour Court proceedings for approximately seven years. While the
Court notes that it was the applicant himself who had requested the
adjournment, it nevertheless bears in mind that it is the role of the
domestic courts to manage their proceedings so that they are
expeditious and effective (see, Pélissier and Sassi v.
France [GC], no. 25444/94, § 74, ECHR 1999 II;
Tibbling v. Sweden, no.
59129/00, § 32, 11 October 2005; Mustafa Türkoğlu
v. Turkey, no. 58922/00, § 40, 8 August 2006 and Zöhre
Akyol v. Turkey, no. 28668/03, § 33, 4 November
2008). Thus the Court cannot but conclude that the national courts
did not act with due diligence overall, having regard to what was at
stake for the applicant.
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further claimed that there had been no effective remedy in
domestic law whereby he could challenge the excessive length of the
proceedings in dispute. He relied on Article 13 of the Convention.
- The
Court notes that this complaint 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.
- The
Court has examined similar cases on previous applications and has
found violations of Article 13 of the Convention in respect of the
lack of an effective remedy under Turkish law whereby the applicant
could have contested the length of the proceedings at issue (see,
most recently, Daneshpayeh v. Turkey, no. 21086/04, §§
35-38, 16 July 2009).
- It
finds no reason to depart from that conclusion in the present case.
There had accordingly been a violation of Article 13 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant complained that,
as a result of the domestic proceedings, he had been deprived of
compensation and had had to endure dire living conditions. In this
regard he invoked Articles 3, 8, and Article 1 of Protocol No. 1 to
the Convention.
- However, the Court finds nothing
whatsoever in the case file which might disclose any appearance of a
violation of these provisions. It follows that this part of the
application is manifestly-ill founded and must be rejected, pursuant
to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 105,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage. He also requested
EUR 16,000 for legal fees and EUR 60 for costs and expenses.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have suffered
some non-pecuniary damage. Therefore, taking into account the
circumstances of the present case, and what was at stake for the
applicant, it awards him EUR 8,100 in respect of non-pecuniary
damage. Furthermore, the Court finds it reasonable to award the
applicant EUR 1,000 for his legal fees, costs and expenses.
- 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 complaints concerning the excessive
length of the proceedings before the Ordu Civil Court of General
Jurisdiction and the right to an effective remedy admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that the respondent State is to
pay the applicant, within three months of the date on which the
judgment becomes final in accordance with Article 44 § 2 of
the Convention, the following amounts, to be converted into Turkish
liras at the rate applicable at the date of settlement:
(i) EUR 8,100 (eight thousand one hundred euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(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 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
