CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 février 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline }     Communicated on 11 February 2016   SECOND SECTION Application no. 22658/10 Mustafa SÖNMEZSOY against Turkey lodged on 30 March 2010 STATEMENT OF FACTS The applicant, Mr Mustafa Sönmezsoy, is a Turkish national, who was born in 1953 and lives in Batman. He is represented before the Court by Mr   A. Çakan and Mr A. Ş. Deniz, lawyers practising in Batman. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case The applicant is the owner of a property (a house and a vacant lot) in the Toptancılar Sitesi area of Batman, which is located in close proximity to the TÜPRAŞ Batman Oil Refinery (“TÜPRAŞ”). On 3 May 2004 a big explosion occurred in Toptancılar Sitesi, which resulted in three deaths and many injuries. The explosion and the ensuing fire also damaged many properties in the vicinity, including that of the applicant. A fact-finding commission was established in the aftermath of the incident by the Batman Governor’s Office to determine the cause of the explosion. It appears that the preliminary investigations led by the fact ‑ finding commission, with the assistance of experts, established that the explosion had been caused by an underground oil leak. The source of the leak could not initially be ascertained, however three main suspects were identified: TÜPRAŞ; an oil storage and supply facility administered by the Ministry of Defence in the area ( Milli Savunma Bakanlığı Akaryakıt İkmal ve NATO Pol Tesisleri , hereinafter referred to as the “NATO Pol Tesisleri”); and various private petrol stations. On an unspecified date in 2004 one of the property owners in Toptancılar Sitesi brought an action before the Batman Civil Court of First Instance for compensation of the damages he had sustained as a result of the explosion, against both TÜPRAŞ and NATO Pol Tesisleri. An expert report obtained during the proceedings identified the source of the leakage as TÜPRAŞ, but also suggested the responsibility of the State authorities, both as regards their failure to detect and prevent the leak, which must have been going on for over twenty years, and their negligence in authorising the establishment of residences and workplaces in such close vicinity to the refinery despite the apparent dangers. On the basis of that expert report, on 21 July 2006 the first-instance court established the sole liability of TÜPRAŞ for the explosion (case no. 2004/966 E.). The judgment of the Batman Civil Court of First Instance was upheld by the Court of Cassation on 30 January 2007, and the rectification request of TÜPRAŞ was rejected on 18 June 2007. 2.     Compensation proceedings brought by the applicant On 30 March 2007 the applicant brought an action for compensation against TÜPRAŞ before the Batman Civil Court of First Instance for the damages he had sustained as a result of the explosion, including structural damage to the building and the reduction in the value of the property. The applicant stated in his petition that following the explosion, Toptancılar Sitesi had been declared a hazardous area by the Batman Governor’s Office and had accordingly been evacuated due to continued risk of explosions, which had greatly reduced the value of his property. Moreover, according to a decision of the Environmental Committee of the Batman Governor’s Office dated 17 August 2005, the area would not be reopened for residence and commercial activity until the underground oil leak had been cleaned up entirely, which, according to numerous expert reports, would not be achievable with existing technology. The applicant therefore claimed that there were no prospects of relief from the current situation. The applicant also stressed in his petition that the source of the leak had not been known prior to the judgment of the Batman Civil Court of First Instance in case no.   2004/966 E. delivered on 21 July 2006, and that TÜPRAŞ had persistently denied liability for the incident both in the media and before the courts, putting the blame instead on the NATO Pol Tesisleri. The uncertainty on this matter had also been reported in the local media. An expert report submitted to the first-instance court on 2 July 2007 found that the applicant’s property had sustained structural damage in the amount of 1,601.75 Turkish liras (TRY) as a result of the explosion. In addition, the value of the property had been reduced by 50%, which corresponded to a reduction of TRY 40,234.77. On 16 May 2008 the Batman Civil Court of First Instance rejected the applicant’s case as being time-barred. The court held that the applicant’s claim concerned a tortious act under Article 60 § 1 of the Code of Obligations in force at the material time, which required compensation claims to be introduced within one year of the date on which the victim learned of the damage and the party responsible for the damage, and in any event within ten years of the act that caused the damage. Having regard to the lawsuits previously brought in respect of the incident and publications in the local media pointing the finger at TÜPRAŞ, the responsibility of the latter could already be assumed on the date of the explosion. The court stressed that it was not necessary to identify the liable party with certainty in order to bring a compensation claim and a mere presumption, on the basis of probabilities, would suffice. In these circumstances, the one-year time-limit set out under Article 60 § 1 had started on 3 May 2004, that is the date of the explosion, and the applicant had failed to introduce his claim within one year from that date. In reaching this finding, the Batman Civil Court of First Instance relied on a judgment delivered by the Court of Cassation (no.   2007/1461 E. and 2008/3560 K.) regarding the same incident. On 11 May 2009 the Court of Cassation upheld the lower court’s judgment and on 19 November 2009 it dismissed the applicant’s rectification request. 3.     Criminal proceedings initiated against TÜPRAŞ executives According to the limited information in the case-file, a criminal investigation was initiated against a number of TÜPRAŞ executives in relation to the explosion that took place on 3 May 2004. It appears that the expert reports obtained during the investigation and the ensuing criminal trial were not able to ascertain the source of the leak. In its judgment dated 1 May 2008 the Batman Assize Court held that while its proximity to the site of the explosion suggested the responsibility of TÜPRAŞ for the explosion, it was not possible to determine whether any of the individual suspects bore liability for it, particularly bearing in mind that the leak had been ongoing for a considerable amount of time. The assize court accordingly acquitted the TÜPRAŞ executives. The Court has no further information regarding the criminal proceedings, but it appears that the applicant had not joined them as a civil party ( müdahil ). B.     Relevant domestic law Under Article 60 § 1 of the Code of Obligations in force at the material time, an action for compensation for damages became 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 commission of the act having caused the damage. The former Code of Obligations was repealed on 1   July 2012, once the new Turkish Code of Obligations (Law no.   6098) came into force. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that he was denied a fair trial on account of the dismissal of his compensation claim as being out of time, which was based on an inaccurate interpretation of Article   60 § 1 of the former Code of Obligations, as well as an erroneous assessment of the facts. He argues in this connection that similar claims made by other property owners in the area had been accepted. He further maintains under the same provision that the domestic court decisions lacked sufficient reasoning. The applicant contends that his property rights, as protected under Article   1 of Protocol No. 1 to the Convention, were violated on account of the damages he suffered following the explosion of 3 May 2004, and that he was not indemnified for his damages. He also maintains that the State authorities failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect his property rights. He lastly argues under this provision that the continuing restrictions on the use of his property due to the ongoing danger of explosion in Toptancılar Sitesi, which essentially results from the authorities’ failure to stop the oil leak and clean up the area, constitutes a further violation of his rights under Article 1 of Protocol No.   1. The applicant complains under Article 13 that the authorities did not take the necessary steps to elucidate the circumstances surrounding the explosion in order to determine liability and punish those responsible, including any State agents involved, and that the criminal investigation into the incident were conducted in bad faith and were ineffective.   QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing within the meaning of Article   6 §   1 of the Convention? In particular, did the dismissal of the applicant’s compensation claim as being out of time violate his right of access to court, implicitly guaranteed by Article 6 § 1 of the Convention? Was the manner in which the national courts calculated the statutory limitation period in the applicant’s case foreseeable and in compliance with the settled jurisprudence of the Court of Cassation regarding the application of Article 60 § 1 of the former Code of Obligations, particularly in view of the applicant’s arguments that (i) he had no way of ascertaining TÜPRAŞ’s liability for the oil leak prior to the Batman Civil Court of First Instance decision in case no.   2004/966 E.; and (ii) that the damage to his property was still continuing on account of the ongoing oil leak?   The parties are requested to submit sample decisions of the Court of Cassation regarding the interpretation and application of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations, with examples explaining when a victim of a tortious act is considered to “know” ( ıttıla ) the identity of the “tortfeasor” ( fail ) and the damage sustained, and what “damage” means for the purposes of the relevant provision.   2.     Was the applicant’s right to property, as protected under Article 1 of Protocol No. 1 to the Convention, violated on account of the oil leak that led to an explosion on 3 May 2004? (a)     Have the State authorities complied with their positive obligations under Article 1 of Protocol No. 1 to take precautionary measures to protect the applicant’s property (see Öneryıldız v.   Turkey [GC], no.   48939/99, §   134, ECHR 2004 ‑ XII)? In particular: (i)     Were the State authorities aware of the oil leak prior to the explosion of 3 May 2004? (ii)     Was there an adequate legislative framework in place to regulate and supervise the setting up and the operation of oil refineries, including town planning restrictions in their proximity? (iii)     Did the State authorities conduct an effective official investigation to shed light on the circumstances surrounding the explosion and to identify those responsible for it, including any State agents or authorities? (iv)     Was the applicant provided with an appropriate legal mechanism, with the necessary procedural guarantees, to vindicate his rights effectively, including by claiming damages in respect of the losses he had sustained (see, mutatis mutandis , Kotov v. Russia [GC], no. 54522/00, §§   112-114, 3   April 2012)? (b)     Is there a continuing restriction on the applicant’s use of his property? If so, does that restriction amount to an interference? Moreover, what is the legal basis for that restriction and does it impose a disproportionate and excessive burden on the applicant?   The Government are requested to indicate whether the oil leak originating from the TÜPRAŞ Batman Oil Refinery has been stopped and to provide information as to the progress made in cleaning up the underground oil leak. The Government are also requested to submit the following information and/or documents: -     Information regarding the legal status and ownership of TÜPRAŞ at the time of the explosion that took place in Batman on 3 May 2004; -     A copy of the case-file pertaining to case no. 2004/966 E. concerning the compensation proceedings before the Batman Civil Court of First Instance; -     A copy of the case file pertaining to the compensation proceedings initiated by the applicant before the Batman Civil Court of First Instance, including any expert reports submitted to that file and the petitions lodged by the applicant with the first-instance and the appeal courts; - A copy of the Court of Cassation’s judgment in case no. 2007/1461 E. and 2008/3560 K; -     A copy of the case-file concerning the criminal proceedings brought against TÜPRAŞ executives before the Batman Assize Court (case no.   2005/1 E.), including the bill of indictment, expert reports obtained during the criminal investigation and trial, and Court of Cassation decisions, if any ; -     All the reports issued by the fact-finding commission established by the Batman Governor’s Office in the aftermath of the explosion ( Batman Gıda Toptancıları Sitesinde Meydana Gelen Patlama ve Yangının Nedenini Araştırma Komisyonu ), as well as any expert reports submitted to that commission ; -     Any other investigative steps taken to shed light on the circumstances surrounding the explosion in question .