CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 30 mars 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s71EEDCF9 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sC79167A { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sF114237 { width:19.02pt; display:inline-block } .sEC241A8 { width:159.87pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     SECOND SECTION DECISION Applications nos. 26752/10 and 26759/10 Cengiz ACAR against Turkey and Mehmet Ali ÖZ against Turkey The European Court of Human Rights (Second Section), sitting on 30   March 2021 as a Committee composed of:   Valeriu Griţco, President,   Branko Lubarda,   Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above applications lodged on 6 April 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The applicant in the first case, Mr Cengiz Acar, was born in 1972. The applicant in the second case, Mr Mehmet Ali Öz, was born in 1955. Both applicants are Turkish nationals and live in Batman. They were represented before the Court by Mr M.M. Erken, Mr S. Özevin and Mr   E.   Erken, lawyers practising in Batman. 2.     The Turkish Government (“the Government”) were represented by their Agent. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Background of the case 4.     The applicants were the owners of two separate properties in the Toptancılar Sitesi area of Batman, which is located in close proximity to the Tüpraş Batman Oil Refinery (“Tüpraş Refinery” or “Tüpraş”, a State-owned enterprise until its privatisation in 2005), and to an oil storage and supply facility run by the Ministry of Defence (hereinafter “ANT”). 5.     On 3 May 2004 a large underground explosion took place in Toptancılar Sitesi, which resulted in three deaths and many injuries. The explosion and ensuing fire also damaged many properties in the vicinity, including those of the applicants. 6.     Further background information on the explosion, as well as the ensuing administrative and judicial developments, have been outlined in the case of Kurşun   v.   Turkey (no. 22677/10, §§   7-45, 30 October 2018). First set of proceedings brought by the applicants 7 .     On 19 and 27 April 2005 respectively, the applicants brought actions for compensation against both Tüpraş and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court”), requesting compensation for the structural damage sustained by their properties and for their alleged commercial loss. They also reserved their right to further compensation for the depreciation of the value of their properties and for other “similar” damages. 8.     On 20 October 2006 and 12 October 2009, the Batman Civil Court allowed the applicants’ claims against Tüpraş in respect of the structural damage and awarded them compensation under that head. However, it rejected claims concerning the alleged commercial loss for lack of sufficient evidence. The Court of Cassation upheld those judgments on 17   July 2007 and 16   March 2010. Second set of proceedings brought by the applicants 9 .     Meanwhile, on 19 February and 8 March 2007 respectively, the applicants brought additional actions before the Batman Civil Court against Tüpraş. The first applicant requested 63,000 Turkish liras (TRY) for the depreciation of the value of his property and TRY 7,000 for his loss of rental income from the date of the explosion. The second applicant requested TRY   65,000 for the depreciation of the value of his property. The applicants argued in their petitions that following the explosion, Toptancılar Sitesi had been evacuated, which had significantly reduced the value of their properties and had caused a loss of rental income. They also stated that the sole responsibility of Tüpraş for the explosion had now been definitively established, as a judgment delivered by the Batman Civil Court against Tüpraş in case no.   2004/966 E. had been upheld by the Court of Cassation (for further details concerning that judgment which was the first occasion on which the Tüpraş Refinery was publicly confirmed as the source of the leak by a court of law, as well as the decision of 30 January 2007 of the Court of Cassation upholding that judgment, see Kurşun , cited above, §§ 42-45). 10 .     By two decisions of 16 May 2008, the Batman Civil Court rejected the applicants’ requests for additional compensation as time-barred. It held that the applicants’ claims concerned a tortious act under Article 60 §   1 of the Code of Obligations, which required compensation claims to be introduced within one year of the date on which the victim became aware of the damage and the party responsible for the damage. Bearing in mind that the applicants had already brought on 19 and 27 April 2005 their first actions for compensation in relation to the explosion in question, the court held that they must have become aware of the act in question and the party responsible by those dates at the latest. Accordingly, the additional actions had not been brought within the applicable one-year time-limit. The court further stated that although criminal charges had also been brought against Tüpraş executives in connection with the explosion in question, those charges had not concerned the offences mentioned in Article 465 of the former Criminal Code which would trigger the application of the longer criminal prescription period to the civil proceedings at issue (see paragraphs   15 to 17 below). 11 .     The applicants appealed against those judgments. They mainly argued that the relevant time-limit could not be triggered unless the victim had certain and exact knowledge of the identity of the tortfeasor. They also claimed that their first actions had been intended essentially to determine the identity of the party responsible. They further claimed that they had only acquired the requisite knowledge of the tortfeasor upon the finalisation of case no. 2004/966 E. on 30 January 2007. The applicants also argued that the first-instance judgments had contradicted decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. They further maintained that the special time-limit provided for in Article 60 § 2 of the former Code of Obligations should have been applied to the proceedings at issue. 12.     On 28 April 2009 the Court of Cassation dismissed the applicants’ appeals. 13.     On 8 October 2009 it also dismissed the applicants’ rectification requests. Relevant domestic law and practice 14.     Under Article 60 § 1 of the Code of Obligations (Law no. 818) in force at the material time (“the former Code of Obligations”), an action for compensation for damage would become time-barred one year after the date on which the damage and the identity of the author thereof became known   ( ıttıla ) or, at the latest, ten years after the commission of the act that had caused the damage. 15 .     The same provision provided in its second paragraph that where the compensation claim originated in an act which also constituted an offence under criminal law that was subject to a longer prescription period, then that longer period would also apply in the action for compensation. 16.     Under Article 465 of the former Criminal Code (Law no.   765), employers and companies were financially liable for the damage resulting from the offences set out in Articles 455 and 459 of the same Code if such offences were committed by their employees in the performance of their duties. 17 .     In a judgment of 27 June 2001 (E. 2001/4-472 K. 2001/547) cited by the Government, the Joint Civil Chambers of the Court of Cassation held that it was a well ‑ established principle that the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply only to the civil proceedings brought against those persons who had committed an offence or had participated in that offence; the longer prescription period could therefore not apply to the civil proceedings brought against the employers or those who were merely financially liable for the offences at issue. The Joint Civil Chambers further noted that Article   465 of the former Criminal Code provided an exception to that principle. Thus, where a civil claim was brought against an employer or a company for the damage resulting from the offences mentioned in Article   465 of the Criminal Code and committed by its employees, the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply to that claim. THE LAW 18.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Complaints under Article 6 § 1 of the Convention 19.     The applicants complained that they had been denied a fair trial on account of the dismissal of their additional actions as being out of time pursuant to Article 60 § 1 of the former Code of Obligations. They further complained that the longer prescription period envisaged under Article   60   §   2 of the former Code of Obligations should have applied in the proceedings at issue. They also alleged that the domestic courts’ decisions dismissing their additional actions had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. 20.     The applicants further maintained that the decisions of the Court of cassation dismissing their appeals and rectification requests had lacked reasoning. 21 .     In their observations dated 14 October 2017, the applicants also complained that their claims should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue. The parties’ submissions 22.     The applicants maintained that under Article   60   § 1 of the former Code of Obligations, an action for damages had to be brought within one year of both the identity of the wrongdoer and the damage sustained becoming known to the victim. 23 .     The applicants argued that they could not be expected to have known with certainty the identity of the wrongdoer and the amount of the damage they had suffered at the outset of the proceedings. They maintained in this connection that mere suspicions as to responsibility were not enough to set off the time-limit. According to them, the decisions dismissing their additional actions had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. 24.     The applicants further claimed that the longer prescription period envisaged under Article   60   §   2 of the former Code of Obligations should have applied in the proceedings at issue. 25 .     The Government maintained that it fell on the national judges to interpret the application of domestic law. In the absence of any arbitrariness in the interpretation of the time-limit rule set out in Article   60   §   1 of the former Code of Obligations by the relevant domestic courts, the applicants’ complaint in this regard was of a fourth-instance nature. The Government also stressed that the applicants had lodged their first actions within the prescribed time-limit but that they had failed to bring their additional actions within that period. 26.     As for the applicants’ complaint concerning Article 60 § 2 of the former Code of Obligations, the Government argued that the domestic courts’ conclusion in that regard was in line with the case-law of the Court of Cassation (see paragraph 17 above). The Court’s assessment (a)    Complaints concerning the dismissal of the additional actions 27.     The Court deems it appropriate to examine the applicants’ complaints from the perspective of the right of access to a court, as guaranteed by Article 6 § 1 of the Convention (see Kurşun, cited above, §   93). It refers in this connection to the recapitulation of it case-law concerning access to court in Zubac v. Croatia ([GC], no.   40160/12, §§   76 ‑ 79, 5   April 2018). 28.     The Court notes that the applicants’ first complaints relate to the determination of the starting point of the time-limit set out in Article   60 §   1 of the former Code of Obligations, under which all tort claims had to be brought within one year of the damage and the identity of those responsible for that damage becoming known to the victim of the civil wrong. The applicants argued in this connection that they could not be expected to have acquired the requisite knowledge of the tortfeasor and the damage on the date of the first actions brought by them. 29.     The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of procedural rules (see Tejedor García v. Spain , 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII). Consequently, the Court’s task is essentially to determine whether, in the present case, the domestic courts applied the relevant one-year time-limit in a foreseeable and reasonable manner, without constituting a bar to the applicants’ effective access to court (see Kurşun, cited above, §   95). 30.     Turning to the facts of the present case, the Court observes that the domestic courts held in the second set of proceedings that the applicants’ claims had become time ‑ barred. They considered in this connection that the applicants had had the requisite knowledge on the date of the first actions at the latest (see paragraph 10 above). 31.     As regards the applicants’ arguments concerning the lack of sufficient knowledge of the identity of the wrongdoer, the Court observes that the party responsible for the incident, namely Tüpraş, was one of the two parties against whom the applicants lodged their first actions (see paragraph 7 above). Therefore, as the applicants had availed themselves of the opportunity to lodge a compensation claim against Tüpraş on 19   and 27   April 2005 respectively, the domestic courts’ conclusion that the applicants had become aware of the party responsible on those dates at the latest does not appear to be overly formalistic in the circumstances of the present case (see, a contrario , Kurşun , cited above, § 101). 32.     As for the second criterion concerning the knowledge of the damage, the Court observes that the applicants merely claimed, in a general manner, that they could not have known with certainty the amount of the damage, without further substantiating their claim. The applicants similarly failed to argue before the domestic courts that they could not have known the damage in respect of the alleged depreciation in value or loss of rental income on the date of the first actions. Indeed, the applicants’ allegations before the domestic courts focused mainly on the lack of sufficient knowledge of the identity of the wrongdoer, without any explanation or argument as to when they could be expected to have acquired knowledge about the damage that they were claiming (see paragraphs 9 and 11 above). The Court also notes that in their first actions for compensation lodged in April   2005, namely almost one year after the incident, the applicants expressly referred to the depreciation of the value of their properties and to other “similar” damages (see paragraph 7 above). However, they failed to request any compensation in respect of the alleged depreciation in value or loss of rental income. Instead, they requested compensation under those heads in 2007, without relying on any assessment made in the meantime concerning their alleged damage. Yet they failed to provide any relevant explanation as to why they could not have been expected to make those claims in their first actions. 33.     As regards the alleged contradiction between the decisions dismissing the applicants’ additional actions and the case-law of the domestic courts, the Court does not find any contradiction between the decisions concerning the applicants and the other decisions cited by them. 34.     Lastly, inasmuch as the applicants complained about the alleged failure of the domestic courts to apply the special time-limit provided for in Article   60 §   2 of the former Code of Obligations in the additional compensation proceedings, the Court observes, as indicated by the Government, that the domestic courts’ conclusion in that regard was in line with the case-law of the Joint Civil Chambers of the Court of Cassation (see paragraphs 15 to 17 above). Indeed, it appears from the decisions at issue that Article 60 § 2 of the former Code of Obligations was not applied in the applicants’ cases, since the criminal charges brought against the Tüpraş executives did not concern the offences mentioned in Article 465 of the former Criminal Code which could exceptionally trigger the application of the longer criminal prescription period in respect of civil claims against Tüpraş (see paragraph 10 above). In the absence of any evidence to the contrary, the Court sees no reason to call into question the assessment made by the domestic courts in that regard, which does not appear to be arbitrary or unduly formalistic. 35.     In view of the above, and having regard also to its limited role as to the interpretation and application of domestic law, the Court considers that the dismissal of the applicants’ additional actions as time-barred cannot be considered as unforeseeable or unreasonable in the circumstances of the present cases. 36 .     It follows that this part of the applications is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. (b)    Other complaints under Article 6 § 1 of the Convention 37.     The applicants further complained that the decisions of the Court of cassation dismissing their appeals and rectification requests had lacked reasoning. 38.     The Court recalls that insofar as appeal instances are concerned, Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision by detailed reasons ( Kabasakal and Atar v. Turkey (dec.), nos.   70084/01 and 70085/01, 1 July 2003, and Feryadi Şahin v.   Turkey , no.   33279/05, § 22, 13 September 2011). 39.     It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 40.     In their observations dated 14 October 2017, the applicants also complained that their claims should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue. 41.     The Court notes that this additional complaint concerns the proceedings which were finalised on 8 October 2009. The Court further notes that it does not constitute an elaboration on the applicants’ original complaints to the Court, but raises a new issue. Accordingly, the Court must reject it pursuant to Article 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time-limit (see, mutatis mutandis , Kurşun , cited above, §   80). Complaints under Article 1 of Protocol No. 1 to the Convention 42.     The applicants complained that the State authorities had failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect their property rights, which were violated on account of the damages that they had suffered following the explosion of 3 May 2004. They further maintained that they had not been indemnified for their damage. They also complained about the prohibition of construction put in place in the area at issue. 43.     The applicants further maintained under Article 13 of the Convention that the criminal proceedings initiated after the incident had not been effective and, in particular, had not complied with the criteria laid down by the Court in the case of Öneryıldız v. Turkey ([GC], no.   48939/99, ECHR 2004 ‑ XII). 44.     The Government argued, inter alia , that the applicants’ complaints under this head should be declared inadmissible under Article   35   §   1 of the Convention for non-exhaustion of domestic remedies. They argued in this connection that the applicants had failed to lodge the compensation proceedings at issue within the applicable time-limit and to bring an administrative action against the relevant State authorities. 45.     The Court considers that the applicants’ complaints under this head fall to be examined under Article 1 of Protocol No. 1 to the Convention alone (see, Kurşun , cited above, § 109). 46.     To the extent that the applicants complained of their inability to receive redress for their alleged damage, the Court observes that by not having complied with the relevant time ‑ limit, the applicants failed to give the domestic authorities an opportunity to examine the merits of their complaints concerning the damage at issue. Therefore, taking also into account its conclusion under Article   6   §   1 of the Convention in that regard (see paragraph 36 above), the Court considers that this part of the applications must be rejected under Article 35   §§   1 and 4 of the Convention for failure to exhaust domestic remedies. 47.     As regards the applicants’ complaint that they had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings initiated after the incident, the Court recalls that it has already examined and declared inadmissible as manifestly ill-founded a similar complaint in the case of Kurşun (cited above, §   125). The Court sees no reason to come to a different conclusion in the present case. It follows that this part of the applications is manifestly ill ‑ founded and must be rejected in accordance with Article 35   §§ 3   (a) and   4 of the Convention. 48.     As for the applicants’ remaining complaints under this head, the Court notes, as also indicated by the Government, that the applicants have not aired them before the relevant domestic authorities or courts before lodging their applications with the Court. It follows that those complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies (see, for a similar finding, Kurşun , cited above, §   132). For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 29 April 2021.   {signature_p_2}   Hasan Bakırcı   Valeriu Griţco   Deputy Registrar   President