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SECOND
SECTION
CASE OF ZÖHRE AKYOL v. TURKEY
(Application
no. 28668/03)
JUDGMENT
STRASBOURG
4
November 2008
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 Zöhre Akyol 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 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28668/03) 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, Mrs Zöhre
Akyol (“the applicant”), on 23 July 2003.
- The
applicant was represented by Ms S. Tutgun, a lawyer practising in
Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- On
14 September 2007 the
Court decided to give notice of the application to the Government. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Ankara.
- On
1 November 1990 the applicant had an accident while entering a lift
in the Balıkçıoğlu Business Centre in Ankara.
The applicant subsequently learned that the lift had been under
repair at the material time, despite the lack of any warning signs to
this effect in the building, and that the accident had been caused by
her attempt to operate the lift under those circumstances.
- Following
the accident the applicant was taken to the Ankara Numune Hospital
where she received medical treatment. According to the report drawn
up by an orthopaedist in that hospital on 20 August 1991, the
applicant suffered a thoracic vertebral
fracture as a result of the accident, was unfit for work for
45 days and was required to undergo 180 days of treatment.
-
Criminal proceedings were subsequently brought against the two
workers who had been repairing the lift at the time (case no.
1990/986), on charges of causing injury through professional
negligence.
- On
11 March 1993 the Ankara Criminal Court acquitted the workers,
holding that they were not responsible for the injuries which the
applicant had suffered.
- The
Ankara public prosecutor then brought criminal proceedings before the
Ankara Criminal Court of First Instance against the manager and the
concierge of the Balıkçıoğlu Business Centre,
on charges of causing injury through negligence (case no. 1993/678).
- Meanwhile,
on 8 April 1992 the applicant brought civil proceedings (case no.
1992/284) before the Ankara Civil Court against the management of the
Balıkçıoğlu Business Centre and Elmas
Elektrik Sanayi Ticaret A.Ş. (the lift maintenance
company), seeking compensation for the pecuniary and non-pecuniary
damage that she had suffered as a result of the accident.
- On
4 February 1993 the first-instance court dismissed the case in so far
as it concerned the management of the Balıkçıoğlu
Business Centre, as the latter had no legal status.
- Following
the decision of 4 February 1993, on 24 May 1993 the applicant brought
a second case before the Ankara Civil Court against the owners of the
apartments in the Balıkçıoğlu Business Centre
and its manager (case no. 1993/452).
- Case
no. 1993/452 was subsequently joined to case no. 1992/284.
- On
2 February 1994 the Ankara Civil Court ordered that the file
concerning case no. 1993/678 be obtained from the Ankara Criminal
Court.
- Between
2 February 1994 and 22 March 1995 the Ankara Civil Court postponed
the hearings pending receipt of the aforementioned file.
- On
22 March 1995, after receiving the file in question, the
first instance court decided to await the outcome of the
criminal proceedings.
- On
3 March 2000 the applicant's representative informed the
first instance court that on 2 November 1999 the
criminal proceedings had been terminated as the statutory time limit
under Article 102 of the Criminal Code had expired.
- Between
3 March 2000 and 21 March 2001, the Ankara Civil Court collected
further evidence in the case.
- On
21 March 2001 the first-instance court decided to send the case file
to an expert for an assessment of the amount of pecuniary damage
allegedly sustained by the applicant as a result of the accident.
- On
25 April 2001 the expert submitted his report.
- Subsequently,
on 17 October 2001 the applicant filed a petition with the
first-instance court, amending the amount of compensation she had
previously claimed, in order to reflect the expert's findings in his
report of 25 April 2001.
- On
21 May 2002 the Ankara Civil Court ordered Elmas Elektrik Sanayi
Ticaret A.Ş. and the owners of the apartments in the
business centre to pay compensation to the applicant for the
pecuniary and non-pecuniary damage she had suffered.
- On
12 May 2003 the Court of Cassation quashed the judgment of
21 May 2002. It noted that one of the persons ordered to
pay compensation was not an apartment owner in the business centre at
the time of the accident and that the first-instance court should
have duly established the names of the owners before rendering its
judgment. The Court of Cassation further noted that the applicant's
petition of 17 October 2001 should have been served on all the
defendants.
- On
10 December 2003 the Court of Cassation dismissed the parties'
requests for rectification of its decision of 12 May 2003.
- On
22 March 2005 the Ankara Civil Court rendered a new judgment in the
light of the Court of Cassation's decision of 12 May 2003, ordering
Elmas Elektrik Sanayi Ticaret A.Ş. and seven persons who
were apartment owners at the time of the accident to pay the
applicant compensation in the amount of 3,145,941,990 Turkish liras
(TRL),
with interest running from 1 November 1990.
- On
23 June 2005 the Court of Cassation upheld the judgment of 22 March
2005.
- On
6 December 2007 the applicant received a payment of 21,032.60 new
Turkish liras (TRY).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the civil proceedings had been incompatible with the
“reasonable time” requirement. She further maintained
under Article 13 of the Convention that she had not had an effective
domestic remedy for her compensation claims, as the length of the
proceedings had been excessive.
The
Court notes that the applicant's allegations under Article 13 of the
Convention do not constitute a complaint regarding the lack of an
effective remedy against the length of
proceedings but essentially concern her
right to a hearing within a reasonable time. For this reason, the
Court considers that the complaint under Article 13 should be
examined from the standpoint of Article 6 § 1 of the Convention
alone. That Article provides:
“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. They
maintained that the length of the proceedings in the instant case
could not be considered to be unreasonable in view of the complexity
of the proceedings and the difficulty in establishing liability. The
Government further submitted that the national court had postponed
the hearings at the applicant's request in order to await the outcome
of the criminal proceedings before the Ankara Criminal Court, and
that there were no periods of inactivity attributable to the national
courts.
- The
period to be taken into consideration began on 8 April 1992, when the
applicant brought the case before the Ankara Civil Court, and ended
on 23 June 2005, when the Court of Cassation rendered its final
decision in the case. It thus lasted over thirteen years and two
months, before two levels of jurisdiction.
A. Admissibility
- 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 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 observes that in the instant case the hearings were postponed
for a period of five years in order to await the result of the
criminal proceedings before the Ankara Criminal Court (case no.
1993/678). The Court notes, however, that neither the complexity of
the case nor the five-year postponement explains the length of the
proceedings. It points out, in particular, that the Ankara Civil
Court gave its judgment over ten years after the initiation of the
civil proceedings and that the Government did not supply any
satisfactory explanation to account for this delay, which seems
manifestly excessive. The Court notes in any
event that, 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 (see Mustafa
Türkoğlu v. Turkey, no. 58922/00, § 40,
8 August 2006).
- 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 that, in the instant case, the length of the
proceedings was not excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant argued under Article 1 of Protocol No. 1 that her right to
property had been breached as a result of the excessive length of the
civil proceedings. The applicant contended in particular that, had
the proceedings been concluded within a reasonable time, her
entitlement to compensation would have materialised earlier, enabling
her to benefit from it sooner.
- The
Court reiterates that Article 1 of Protocol No. 1 only enshrines the
right to the peaceful enjoyment of existing possessions (see Marckx
v. Belgium, judgment of 13 June 1979, Series A no. 31, p.
23, § 50). The Court also notes that it
has consistently held that a “claim” can only constitute
a “possession” within the meaning of Article 1 of
Protocol No. 1 if it is sufficiently established to be enforceable
(see Burdov v. Russia,
no. 59498/00, § 40, ECHR 2002-III, and Poltorachenko
v. Ukraine, no. 77317/01, §
45, 18 January 2005).
- In
the present case, the applicant's claim to compensation only became a
“possession” within the meaning of Article 1 of Protocol
No. 1 when it was established by a final and enforceable court
judgment (see, mutatis mutandis,
Pravednaya v. Russia,
no. 69529/01, §§ 37 39, 18 November
2004), that is, by the Court of Cassation decision of 23 June
2005. Prior to this date, the applicant had no “possession”
that could be the subject of an interference. The applicant's
inability to benefit from compensation at an earlier date cannot,
therefore, be considered to have deprived her of any property rights
within the meaning of Article 1 of Protocol No. 1.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4
of the Convention.
III. 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 250,000 in respect of pecuniary damage. She
further claimed EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
- With
regard to the alleged pecuniary damage sustained by the applicant,
the Court notes that she has failed to substantiate her claim under
this head, and accordingly dismisses it. However, the Court finds
that the applicant must have suffered distress which cannot be
compensated solely by its finding of a violation. Having regard to
the nature of the violation found in the present case and ruling on
an equitable basis, it awards the applicant EUR 10,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed TRY 670 (approximately EUR 350) for the costs
and expenses incurred before the Court, such as
stationery, photocopying, translation and postal costs. The applicant
submitted invoices disclosing that she had incurred expenses in the
overall amount of TRY 170 (approximately EUR 90).
- The
Government submitted that the applicant had failed to substantiate
her claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as 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
finds it reasonable to award the sum of EUR 90 to cover her costs and
expenses.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- 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 the national currency of the
respondent Government at the rate applicable at the date of
settlement:
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
90 (ninety euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicant;
(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 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
