CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 20 novembre 2018

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A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicants are the heirs of drivers who had been involved in fatal accidents that had been caused through their own fault. 5.     On different dates, the applicants initiated proceedings before the domestic courts against insurance companies, and requested compensation for the pain and suffering that they had to endure due to the death of their respective inheritors. At the material time, when determining the amount of compensation to be paid to the deceased drivers’ inheritors, the Court of Cassation did not take into consideration the drivers’ fault in the accidents. 6.     As the cases were pending before the first instance courts, in 2008 the Court of Cassation changed its approach on similar cases and decided that no compensation should be awarded to the heirs of drivers who had been at fault in road accidents. It held that the heirs should not take advantage of the deceased drivers’ fault and that the insurance companies had the right to raise the objections they would have submitted against the drivers at fault, had they survived the accidents. 7.     Relying on the recent case-law of the Court of Cassation, the first instance courts dismissed the applicants’ cases respectively as there was no dispute between the parties that the drivers had been at full fault in the accidents. 8.     Some of the applicants appealed against the judgments. Some of them, taking into account the change in the case-law, considered that an appeal would be futile and did not appeal. 9.     Following the introduction of the present cases, in 2012 the Court of Cassation once again revised its approach on the matter. In particular, when a first instance court insisted on its previous judgment to award compensation to the heirs of the driver who had been at fault in the road accident, the matter was transferred to the Joined Civil Chambers of the Court of Cassation for unification of case-law. In a leading decision dated 22   February 2012, the Court of Cassation reassessed the situation and decided that even if the deceased drivers had been at full fault in the accidents, the plaintiffs should be awarded compensation by the insurance companies for the indirect suffering they had to endure due to the fatal accident. 10.     The details of the applications may be found in the appendix. B.     Relevant domestic law and practice 11.     According to Section 91 § 1 of Law no. 2918 (Code on Road Traffic), it is mandatory for the owners to insure their motorised vehicles. The owner and the driver of a vehicle are both responsible for any corporal and/or pecuniary damage caused by the vehicle. 12.     Until 2008, when deciding on the amount of compensation awarded to the heirs of a deceased driver, the Court of Cassation did not take into consideration whether the driver had been at fault in the accident. The court held the view that the damage suffered by the heirs was an indirect result of the accident and that the compensation claim of the heirs was not the result of inheritance rights. The court further held that the heirs no liability in the impugned accidents and could not be held responsible for the drivers’ faults. 13.     As of 2008 and until 2012, the Court of Cassation changed its approach on the matter and decided that the deceased drivers’ fault had to be taken into consideration. It held that the heirs should not take advantage of the deceased drivers’ fault and that the insurance companies had the right to raise the objections they would have submitted against the drivers at fault, had they survived the accidents. 14.     Subsequently, in a leading decision dated 22 February 2012 the Joint Civil Chambers of the Court of Cassation had the opportunity to clarify the case-law and decided to continue using the first approach. It held that the heirs of a deceased driver should be awarded compensation even though the accident had been caused through the driver’s own fault. COMPLAINT 15.     The applicants complained under Article 6 of the Convention of a breach of the principle of legal certainty on account of the conflicting case ‑ law of the Court of Cassation. Some of the applicants also invoked Article   1 of Protocol No. 1 to the Convention in relation to the same complaint. THE LAW 16.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. 17.     The applicants stated that as a result of the change in the case-law of the Court of Cassation, their compensation cases had been unjustly dismissed. In this regard, they invoked Article 6 of the Convention and Article   1 of Protocol No. 1 to the Convention. 18.     The Court considers that the applicant’s complaints should be examined under Article 6 § 1 of the Convention, which reads:   “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...” 19.     The Government argued in the first place that the applications should be declared inadmissible due to non-compliance with several admissibility rules, such as non-exhaustion of domestic remedies and the introduction of the cases after the six-month time-limit. As to the merits, the Government further submitted that there had not been profound and long standing differences in the Court of Cassation’s approach to the material dispute before it so as to breach the principle of legal certainty. They further stated that the domestic law had provided an effective mechanism to ensure the consistency and uniformity of case-law. 20.     The Court considers that it does not need to resolve the preliminary issues submitted by the Government, as the applications are, in any event, inadmissible for the reasons stated below. 21.     The Court notes at the outset that it has in the past examined an identical case and found it inadmissible for being manifestly ill-founded (see Şen v. Turkey (dec.) [Committee], no. 24537/10, 14 February 2012). 22.     The Court further reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. It is not the Court’s role or function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Sepe and others v. Italy (dec.), no.   36167/07, §§ 16-17, 16 September 2014). 23.     The right to a fair trial must be interpreted in the light of the Preamble to the Convention, which declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty. Conflicting decisions in similar cases heard in the same court which, in addition, is the court of last resort in the matter, may, in the absence of a mechanism which ensures consistency, breach that principle and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Nejdet Şahin and Perihan Şahin v.   Turkey [GC], no. 13279/05, §§ 55 ‑ 57, 20 October 2011). Nevertheless, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France , no. 20153/04 § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v.   “the Former Yugoslav Republic of Macedonia” , no. 36815/03, § 38, 14   January 2010). 24.     Furthermore individual petition to the Court cannot be used as a means of dealing with or eliminating conflicts of case-law that may arise in domestic law or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts ( Nejdet Şahin and Perihan Şahin , cited above , § 95). 25.     The Court has been called upon to pronounce judgment on conflicting decisions that may be made within a single court of appeal (see Tudor Tudor v. Romania , no. 21911/03, 24 March 2009). In addition to the “profound and long standing” nature of the divergences in issue, the legal uncertainty resulting from the inconsistency in the practice of the courts concerned and the lack of machinery for resolving the conflicting decisions were also considered to be in breach of the right to a fair trial (see Tudor Tudor , cited above, §§ 30-32). 26.     In this regard the Court has reiterated on many occasions the importance of setting mechanisms in place to ensure consistency in court practice and uniformity of the courts’ case-law (see Schwarzkopf and Taussik, v. the Czech Republic (dec.), no. 42162/02, 2 December 2008). 27.     Turning to the facts of the present applications, the Court notes that initially when the applicants initiated proceedings before the respective first instance courts, they could have reasonably expected a finding in their favour, as the case-law at the time had entitled the heirs of a deceased driver to compensation –even though the deceased driver had been fully at fault. However, when the Court of Cassation deviated from its previous case-law in 2008, it gave a detailed explanation as to why the case at hand had been decided contrary to the already existing case-law. The Court observes at this point that following the detailed decision of the Court of Cassation, in nine applications, the applicants did not file an appeal when their cases were dismissed by the first instance courts and in four applications they did not pursue their case (see the table in the annex). Subsequently in 2010, the same legal matter had to be reevaluated following a divergent decision delivered by a first instance court. The Joined Civil Chambers of the Court of Cassation conducted a fresh examination of the legal problem to unify its case-law. In a leading judgment, the Court of Cassation decided to adopt its first approach and held that a deceased driver’s heir should be entitled to compensation for the loss and suffering he had to endure as a result of the fatal accident, even though the driver had been at full fault. 28.     The Court notes that this new leading judgment which was in the applicants’ favour did not have any effect on their cases since those proceedings had already become final. Nevertheless, the domestic law and practice provided a mechanism to ensure the consistency of court practice and unification of case-law. The Court recalls once again that achieving consistency of the law may take time, and case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Nejdet Şahin and Perihan Şahin , cited above, §§   83 and   58). 29.     In the light of the foregoing, the present applications must be declared inadmissible as manifestly ill-founded under article 35 §§ 3 and   4 of the Convention on the ground that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 13 December 2018.   Hasan Bakırcı   Ledi Bianku   Deputy Registrar   President APPENDIX     No.   Application no.   Lodged on Applicant Date of birth Place of residence   Represented by   Case specific details   16746/10 15/03/2010 Emine MUTLU 01/01/1964 Adıyaman   Erhan BORA On 4 December 2008 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 7   December 2009.   17430/10 15/03/2010 Tülin FIRAT 11/09/1965 Ankara   Berna FIRAT 26/09/1989 Ankara   Erhan BORA On 6 November 2008 the Ankara Commercial Court dismissed the applicants’ case. The applicants did not appeal against the judgment.   17438/10 15/03/2010 Gürcü ÇITAK 01/01/1967 Yozgat   Erhan BORA On 16 July 2009 the Ankara Commercial Court dismissed the applicant’s case. On 22   March 2010 the Court of Cassation upheld the judgment.   17454/10 16/03/2010 Şahinaz KEMEÇ 01/01/1964 Istanbul   Duygu KEMEÇ 02/06/1988 Istanbul   Erhan BORA On 26 May 2008 the Beyoğlu Commercial Court awarded compensation to the applicants. On 14   December 2009 the Court of Cassation quashed the judgment of the first instance court. On 21 July 2010 the first instance court dismissed the case. No appeal was lodged against this judgment.   17465/10 15/03/2010 Hüseyin ATLI 11/12/1961 Çankırı       Handan ATLI 29/01/1978 Çankırı   Erhan BORA On 22 April 2009 the Ankara Commercial Court dismissed the applicants’ case. On 23   September 2010 the Court of Cassation upheld the judgment. Subsequently, relying on the change in case-law, the applicants’ rectification request was accepted and the case file was resend to the first instance court for a fresh examination on 20 June 2013. According to the latest information in the file, the case is still pending before the first instance court.   17918/10 10/03/2010 Nurcan ŞAHİN 09/02/1965 Ordu   Erhan BORA On 3 October 2007 the Beyoğlu Commercial Court awarded compensation to the applicant. On 13 April 2009 the Court of Cassation quashed the judgment of the first instance court. On 17   February 2010 the first instance court dismissed the case and the no appeal was filed against this judgment.   19692/10 23/03/2010 Selvinaz SEVİNDİK 04/08/1988 Samsun   Erhan BORA On 24 July 2007 the Beyoğlu Commercial Court awarded compensation to the applicant. On 19   January 2009 the Court of Cassation quashed the judgment. On 23 February 2010 the first instance court adhered to the decision of the Court of Cassation and dismissed the case. Subsequently the Court of Cassation rejected the applicant’s appeal request.   19739/10 22/03/2010 Çetin TEZCAN 06/01/1950 Muğla       Saadet TEZCAN 18/05/1957 Muğla   Erhan BORA On 12 February 2009 the Ankara Commercial Court dismissed the applicants’ case. The appeal proceedings were pending at the time when the application was lodged.   19783/10 19/03/2010 Fatma ARTLI 15/11/1980 Samsun   Hakan Cemal ARTLI 15/12/1998 Samsun   Can ARTLI 14/06/2004 Samsun   Cem ARTLI 14/06/2004 Samsun   Erhan BORA On 20 June 2007 the Ankara Commercial Court decided to award compensation to the applicants. On 4 June 2009 the Court of Cassation quashed the judgment of the first instance court. On 16   June 2010 the first instance court dismissed the applicants’ case. No appeal was lodged against this judgment.   19797/10 22/03/2010 Fadime İĞSİZ 21/10/1965 Manisa   Erhan BORA The applicant initiated a compensation case before the Ankara Commercial Court but did not pursue her case. Consequently, on 1   June 2009 the first instance court decided to strike the case out.   19848/10 19/03/2010 Nurgül KAYA 05/02/1970 Ankara   Erhan BORA On 4 October 2007 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 17 October 2008 the Court of Cassation quashed the judgment of the first instance court. On 24 March 2011 the first instance court dismissed the applicant’s case. The appeal request was also rejected on 31 May 2012.   19851/10 19/03/2010 Reyhan EROL 01/01/1964 Istanbul   Erhan BORA On 14 November 2007 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 8   June 2009 the Court of Cassation quashed the judgment of the first instance court. As the applicant did not pursue her case, on 26 July 2010 the case was struck out by the first instance court.   19854/10 22/03/2010 Remziye KULOĞLU 16/08/1967     Erhan BORA On 13 February 2008 the Ankara Commercial Court upheld the applicant’s case and awarded compensation. On 15   September 2008 the Court of Cassation quashed the judgment of the first instance court. As the applicant did not pursue her case, on 26 January 2010 the case was struck out by the first instance court.   19861/10 22/03/2010 Melek KİRMAN 12/01/1966 Kocaeli   Reyhan KİRMAN 22/01/1992 Kocaeli   Ayhan KİRMAN 01/07/1994 Kocaeli   Erhan BORA On 30 September 2010 the Ankara Commercial Court dismissed the applicants’ case. No appeal was lodged against this judgment.   19876/10 22/03/2010 Yılmaz GÜREL 19/12/1965 Tekirdağ   Erhan BORA On 29 December 2008 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 14   December 2009.   20691/10 26/03/2010 Recebiye DEMİRTAŞ 30/03/1980 Bursa     Hilal DEMİRTAŞ 19/02/1998 Bursa   Eslem DEMİRTAŞ 23/09/2004 Bursa   Erhan BORA On 13 December 2007 the Ankara Commercial Court dismissed the applicants’ case. This judgment was upheld by the Court of Cassation on 3   December 2009.   20735/10 23/03/2010 Bahar Işık YÜCEL 03/08/1978 Kayseri   Yalçın YÜCEL 08/04/2004 Kayseri   Erhan BORA On 15 July 2008 the Beyoğlu Commercial Court awarded compensation to the applicants. On 14   December 2009 the Court of Cassation quashed the judgment. On 28 September 2010 the first instance court dismissed the case. No appeal was filed against this judgment.   20736/10 24/03/2010 Nermin TANGÖR 13/01/1939 Edirne   Erhan BORA On 4 February 2009 the Ankara Commercial Court dismissed the applicant’s case. On 14   December 2009 the Court of Cassation rejected the applicant’s appeal request.   20739/10 24/03/2010 Nurten KIRCALI 01/05/1972 Kırklareli   Alp KIRCALI 24/05/1992 Kırklareli   Fikriye KIRCALI 04/03/1995 Kırklareli Erhan BORA On 9 October 2008 the Ankara Commercial Court dismissed the applicant’s case. On 23   December 2010 the Court of Cassation rejected the applicants’ appeal request.   21998/10 29/03/2010 Gülay ÇÖRDÜK 16/05/1972 Çorum   Fatma ÇÖRDÜK 06/03/1995 Çorum   Çağrı ÇÖRDÜK 07/11/1992 İzmir   Erhan BORA On 15 November the Ankara Commercial Court awarded compensation to the applicants. On 8 June 2009 the Court of Cassation quashed the judgment. On 11   March 2010 the first instance court dismissed the case. On 28 June 2010 the Court of Cassation upheld the judgment.   22005/10 29/03/2010 Hatice PAMUK 20/11/1957 Bursa   Erhan BORA On 28 February 2008 the Ankara Commercial Court awarded compensation to the applicant. On 9   October 2008 the Court of Cassation quashed the judgment. On 15 April 2010 the first instance court dismissed the case. No appeal was filed against this judgment.   28637/10 27/04/2010 Alime YAKICI 21/05/1963 Konya   Erhan BORA The applicant initiated a compensation case before the Ankara Commercial Court but did not pursue her case. Consequently, on 11   February 2010 the first instance court decided to strike the case out.   28638/10 27/04/2010 Fatma DEĞERLİ 01/02/1950 Kayseri   Erhan BORA On 5 March 2009 the Ankara Commercial Court dismissed the applicant’s case. This judgment was upheld by the Court of Cassation on 14   December 2009.   28640/10 27/04/2010 Aynur TÜRKMEN 05/04/1956 Muğla   Erhan BORA On 6 November 2008 the Ankara Commercial Court dismissed the applicant’s case. No appeal was lodged against this judgment.   28642/10 27/04/2010 Hamide KALENDER 25/06/1954 Ordu   Erhan BORA On 18 September 2008 the Ankara Commercial Court dismissed the applicant’s case. On 14   December 2009 the Court of Cassation upheld the judgment of the first instance court.   26803/11 14/01/2011 Gurbet ETE 09/12/1971 Siirt   Sinan ETE 25/07/1991 Siirt   Rezan ETE 01/01/1993 Mersin   Ferhat ETE 08/08/1994 Mersin   Azat ETE 10/05/1997 Siirt   Muhammet ETE 08/09/2005 Mersin   Mustafa ETE 08/09/2005 Mersin   Abdullah ERKOL On 2 April 2009 the Mersin Commercial Court dismissed the applicants’ case. On 15   April 2010 and 7   October 2010 the applicants’ appeal and rectification requests were rejected respectively.   63054/11 20/07/2011 Fatma ZENT 01/01/1962 Adıyaman   Zafer ZENT 30/08/1990 Adıyaman   Erhan BORA On 28 May 2009 the Ankara Commercial Court dismissed the applicant’s case.