ERCAN BOZKURT v. TURKEY - 20620/10 - Chamber Judgment [2015] ECHR 612 (23 June 2015)

In the case of Ercan Bozkurt v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          András Sajó, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller,
          Paul Lemmens,
          Egidijus Kūris,
          Robert Spano, judges,
          Jon Fridrik Kjølbro, substitute judge,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 26 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20620/10) 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 Ercan Bozkurt (“the applicant”), on 23 March 2010.

2. The applicant was represented by Mr M. V. Taylan, a lawyer practising in Bitlis. The Turkish Government (“the Government”) were represented by their Agent.

3. On 8 July 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1976 and lives in Bitlis.

A. The incident

5. On 10 November 2000 the applicant and his two brothers, E.B. and B.B., went to Darkolink hill[1] in Güroymak, Bitlis, with their two oxen to collect leaves and twigs. The sledge pulled by the oxen detonated a landmine and the animals died on the spot as a result of the explosion that ensued. The applicant and his brother E.B., both injured, were promptly taken to a health care centre in Güroymak by the gendarmerie, who were stationed at the Cevizyatağı gendarmerie station located approximately 500 metres from the scene of the incident. They were subsequently transferred to the Tatvan Military Hospital for further medical intervention.

6. According to a medical report prepared by the Gölcük State Hospital on 28 March 2001, both of the applicant’s legs were amputated below the knee as a result of the serious injuries he had sustained. It appears, however, that his brother E.B. was only slightly injured.

7. On 12 March 2002 he was declared disabled by a medical panel of the Van State Hospital, which established that his working capacity had been reduced by 80 %.

B. The criminal investigation

8. Shortly after the incident, the gendarmes drafted an incident report and made a sketch map of the scene of the incident. The incident report indicated that the explosion had taken place on Darkolink hill located 500 metres from the Cevizyatağı Gendarmerie Station, in an area which had previously been regularly used by the gendarmerie for exploration and surveillance purposes. The gendarmes who drafted the report were of the opinion that the landmine had been planted by members of the PKK (the Kurdistan Workers’ Party, an illegal organisation) after nightfall, when the area was not under surveillance, with the intention of targeting the security forces. There was no further information in the report as to when the landmine might have been planted.

9. The gendarmes also took witness statements from the applicant’s brothers and five village guards between 10 and 15 November 2000.

10. In his statement to the gendarmerie the applicant’s injured brother E.B. stated that they regularly used the site of explosion to collect leaves and that he did not want to bring any complaints in connection with the incident.

11. The applicant’s other brother B.B., who was apparently a village guard, gave an account of the events in his statement to the gendarmerie. He submitted that the hill where the explosion took place had been used in the past by security officers from the Cevizyatağı gendarmerie station, as well as by village guards, for surveillance purposes. It was very likely that the area had been mined by the PKK to strike at the gendarmerie forces and the guards whilst on surveillance duty.

12. The other five witnesses, all village guards, confirmed that the hill in question had served as a surveillance and exploration area in the past for both security forces and village guards. According to one of the witnesses, the PKK terrorists must have realised the purpose for which this hill was used and mined the area to harm them.

13. In his statement taken by the gendarmes on 15 November 2000, the applicant said that he regularly went to the hill in question to collect leaves, but he did not know that the area was mined. He also told the gendarmes that he did not wish to lodge any complaints in relation to the incident.

14. On 16 November 2000 the commander of the mine-sweeping unit issued a report, where he stated that the pieces collected at the scene of the incident were parts of mortar ammunition, which was used by the PKK to make “homemade” mines (yapma mayın).

15. On an unspecified date the Güroymak public prosecutor’s office initiated an investigation of its own motion into the circumstances of the incident. On 8 January 2001 the public prosecutor issued a permanent search warrant valid for twenty years from the date of the incident. The search warrant instructed the security forces to carry out a rigorous investigation into the identification of the perpetrator(s) and to report to the public prosecutor’s office every three months.

16. On 14 November 2007 the Van public prosecutor’s office instructed the Güroymak public prosecutor’s office to continue the investigation until the statutory time-limit expired, and to report to it every three months.

C. Compensation proceedings

1. The first set of proceedings

17. On 4 August 2003 the applicant filed an action for compensation against the Ministry of Defence and the Ministry of the Interior before the Güroymak Civil Court of First Instance for the alleged pecuniary and non-pecuniary damage he had sustained on account of the explosion of the landmine, including the loss of his oxen.

18. On 11 February 2004 the Güroymak Civil Court of First Instance issued a decision of lack of jurisdiction on the ground that the action in question fell under the jurisdiction of the administrative courts. The first-instance court held that the criminal investigation conducted by the public prosecutor had not yielded sufficient information to determine whether the landmine that had injured the applicant had been laid by security forces or terrorists. However, even in the latter case, the State could be held responsible for the damage sustained on account of the “social risk” doctrine, which was a no-fault based principle adopted by the administrative courts on the basis of the reasoning that the burden of the damage caused in the fight against terrorism should be shared by society as a whole in accordance with the principles of “justice” and “the social State”.

19. On 3 November 2004 the applicant brought a new action for compensation against the Ministry of Defence and the Ministry of the Interior, this time before the Van Administrative Court.

20. On 16 December 2004 the administrative court requested the applicant, via a letter, to deposit postal costs in the amount of 50,000,000 Turkish liras (TRL[2]) (approximately 26 euros (EUR) at the relevant time) within thirty days of the service of the letter. The letter was served on the applicant on 27 December 2004. Upon the applicant’s failure to make the payment, the administrative court repeated its request on 4 March 2005, and warned the applicant that the proceedings would be discontinued in the event of failure to make the requested payment within thirty days of service of the second letter. This second payment request was received by the applicant on 17 March 2005.

21. On 28 April 2005 the Van Administrative Court discontinued the compensation proceedings on procedural grounds, on account of the applicant’s failure to pay the postal costs despite two warnings that had been sent in accordance with the Administrative Procedure Act (Law no. 2577) (davanın açlmamış sayılması kararı). The Van Administrative Court’s decision was served on the applicant on 11 May 2005.

22. The applicant did not appeal against the decision of the Van Administrative Court. However, on 13 May 2005 he filed a petition with that court, arguing that he had made the requested payment on 15 April 2005.

2. The second set of proceedings

23. On 28 November 2006 the applicant filed a new action against the Ministry of Defence and the Ministry of the Interior before the Van Administrative Court, requesting compensation in relation to the same incident.

24. In a decision dated 23 February 2007 the administrative court held that it had already delivered a decision on 28 April 2005 on the applicant’s compensation claim against the same parties in relation to the same incident, and the relevant decision had become final by reason of the applicant’s failure to appeal. In view of the “final decision” concerning the dispute in question, the new compensation claim filed by the applicant could not be examined on the merits. The Van Administrative Court accordingly decided to dismiss the action.

25. On 25 July 2007 the applicant appealed against the decision of the Van Administrative Court. He argued mainly that contrary to the finding of that court, its earlier decision of 28 April 2005 did not constitute a “final decision” on the merits of the case, as it had been dismissed on purely procedural grounds. He further stated that he had not appealed against the relevant decision at the time to avoid loss of time.

26. On 6 September 2007 the Van Administrative Court requested the applicant to pay court fees of TRY 53.90, within fifteen days of the service of the request.

27. On 24 September 2007 the applicant made the requested payment, approximately two months after lodging the appeal.

28. On 30 September 2011 the Supreme Administrative Court dismissed the applicant’s appeal request. Although it accepted the applicant’s argument that the Van Administrative Court’s earlier decision could not be considered to be a “final decision” on the merits of the dispute, it nevertheless found that the applicant had failed to lodge his compensation claim within the relevant statutory time-limit.

29. On 29 January 2014 the Supreme Administrative Court rejected the applicant’s rectification request.

II. RELEVANT DOMESTIC LAW AND PRACTICE

30. Article 125 of the Constitution provides as follows:

“All acts and decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

By virtue of this provision, the administration will be liable to indemnify any damage it has caused through its own fault. However, where no fault can be attributed to the administration, it may still be held liable by virtue of Article 125 of the Constitution, on the basis of the theory of “social risk”; in such cases, it is sufficient to prove the causal link between the administrative act or measure and the damage sustained (see Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, § 83, 26 July 2005). It falls upon the administrative courts to examine in each case before them whether the administration was at fault in relation to a particular damage, and if not, whether the administration should nevertheless be held accountable on the basis of the “social risk” principle.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

31. The applicant complained under Article 6 of the Convention that he had been denied a fair trial because the initial compensation proceedings before the Van Administrative Court had been dismissed erroneously on the ground that he had not paid some of the court fees, whereas he had duly made all the payments requested by that court. He further complained of the excessive length of the compensation proceedings and claimed, in broad terms, that courts in Turkey were not impartial. The relevant part of Article 6 of the Convention reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

A. Admissibility

32. The Court reiterates that under Article 35 § 1 of the Convention it can only deal with applications after all domestic remedies have been exhausted and within a period of six months from the date on which the final domestic decision was taken. The Court further recalls that it cannot set aside the application of the six-month rule solely because a government has not made a preliminary objection to that effect (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I; Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 71, 10 January 2012; and Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012). It therefore finds it necessary to start its examination by reviewing the compliance of the applicant’s complaints with the six-month rule.

33. The Court notes in this connection that there were two separate sets of compensation proceedings before the Van Administrative Court in the instant case. The first set of proceedings commenced on 4 August 2003 and ended on 28 April 2005 when the Van Administrative Court decided to discontinue the compensation proceedings on account of the applicant’s failure to pay the necessary court fees within the specified time-limit. This was the final decision in the relevant proceedings, as the applicant did not formally appeal against it (see paragraph 22 above). The second set of proceedings started on 28 November 2006 and came to an end on 29 January 2014 with the Supreme Administrative Court’s rejection of the applicant’s rectification request.

34. The Court notes that the Van Administrative Court’s initial decision to discontinue the first set of compensation proceedings was served on the applicant on 11 May 2005, whereas the present application was lodged with the Court on 23 March 2010. In these circumstances, the applicant’s complaints regarding the fairness of the first set of compensation proceedings, including any access to court issues due to allegations regarding non-payment of court fees, were lodged outside the six-month time-limit. It follows that the complaints in question are inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

35. In so far as the applicant complained about the lack of impartiality of the Van Administrative Court within the context of the second set of compensation proceedings, the Court notes that this complaint remains wholly unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

36. As for the applicant’s complaint concerning the length of the second set of compensation proceedings, the Court observes at the outset that a new domestic remedy has been established in Turkey to deal with complaints concerning the length of proceedings since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), which remedy has been considered, a priori, accessible and capable of offering a reasonable prospect of redress (see Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013). The Court has, however, also stressed in the case of Ümmühan Kaplan (cited above, § 77) that it may nevertheless pursue the examination of such complaints under the normal procedure in cases which have already been communicated to the Government prior to the entry into force of the new remedy.

37. In view of the above, and bearing in mind that the Government did not raise an objection in respect of the new domestic remedy in the instant case, the Court decides to pursue the examination of the present complaint (see Hasan Yazıcı v. Turkey, no. 40877/07, §§ 71-73, 15 April 2014).

38. Moreover, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

39. The Government claimed that the length of the proceedings in question could not be considered to be unreasonable in view of the complexity of the case, which entailed the determination of the responsibility of the State for the explosion of a landmine in circumstances where the persons who had laid the landmine had not been identified. They also stressed that the applicant had delayed the proceedings by failing to pay the court fees for the appeal process in a timely manner, and that there had been no periods of inactivity attributable to the national courts.

40. The applicant maintained his allegations.

41. The Court observes that the period to be taken into consideration lasted over seven years and two months before two levels of jurisdiction, which examined the case three times. The case was pending before the Supreme Administrative Court for approximately six and a half years of this total period during the appeal and rectification stages.

42. 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 Oyal v. Turkey, no. 4864/05, § 85, 23 March 2010, and the cases referred to therein).

43. Having examined all the material submitted to it, the Court considers that, contrary to the Government’s assertion, the proceedings in question presented no complexity, given that the action was dismissed on simple procedural grounds due to the expiry of the statutory time-limit, without an examination on the merits. Moreover, while the applicant had indeed failed to pay the fees for the appeal proceedings in a timely manner as the Government indicated, it appears that the delay in question did not exceed two months (see paragraph 27 above); the applicant’s conduct alone could not, therefore, justify the entire length of the proceedings.

44. Having regard to the foregoing, as well as its case-law on the subject, the Court therefore considers that the length of the proceedings in question was 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 ARTICLES 2 AND 13 OF THE CONVENTION

45. At the time of communicating the application, the Court, as the master of the characterisation to be given in law to the facts of the case (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), also requested the Government, of its own motion, to submit observations as to whether the applicant’s right to life as guaranteed under Article 2 of the Convention had been infringed on the facts of the instant case and, in particular, whether necessary measures to protect his life had been taken by the State authorities. The Court further inquired under Article 13 of the Convention whether the applicant had had available to him effective domestic remedies in relation to the issues raised under Article 2 and to obtain compensation for the damages he had sustained.

The relevant parts of Articles 2 and 13 read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ arguments

46. In his observations received on 16 March 2011 the applicant stated that the respondent State had indeed failed to fulfil its duty under Article 2 to take sufficient precautions to protect his life, which duty was owed to him regardless of whether the landmine that endangered his physical integrity had been laid by State security forces or terrorists. The applicant added that where the State failed in its primary duty under Article 2 to protect a person’s right to life, it would thenceforth be under an obligation to provide him or her with adequate redress, in the form of pecuniary and non-pecuniary damages. The proceedings he had initiated for that purpose, however, had been pending since 2003.

47. The Government maintained, inter alia, that the applicant had not duly exhausted the administrative remedies that he had resorted to in relation to his Article 2 complaints, firstly because he had applied to the Court prior to the termination of the relevant administrative proceedings, and secondly because the proceedings in question had been discontinued on account of the latter’s failure to comply with various domestic procedural rules.

B. The Court’s assessment

48. The Court notes at the outset that the fact that the applicant fortuitously survived the accident does not prevent it from examining the complaint under Article 2 of the Convention, since the explosion in the instant case was potentially fatal and put his life at risk (see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 52 and 55, ECHR 2004-XI; and Alkın v. Turkey, no. 75588/01, § 29, 13 October 2009).

49. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III; and Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII).

50. The State’s obligation extends beyond its primary duty to secure the right to life, by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Article 2 may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Mastromatteo v. Italy [GC], no. 37703/97, § 67, ECHR 2002-VIII).

51. That does not mean, however, that a positive obligation to prevent every possibility of violence can be derived from this provision (see, inter alia, Tanrıbilir v. Turkey, no. 21422/93, § 71, 16 November 2000). Such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Osman, cited above, § 116).

52. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. A positive obligation will arise, the Court has held, where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; and Choreftakis and Choreftaki v. Greece, no. 46846/08, § 47, 17 January 2012).

53. So far the Court has dealt with various situations engaging the States’ positive obligations to protect the right to life under Article 2 of the Convention from the criminal acts of a third party. It has thus, by applying the above-cited Osman test, defined the scope of these obligations in instances concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, as entailing the necessary analysis of whether there was any decisive stage in the sequence of events leading up to the deprivation of life when it could be said that the authorities knew, or ought to have known, of a real and immediate risk to the life of the individual, and whether they failed to take the necessary measures to avoid that risk (see, for example, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 57 ECHR 2002-II (murder of a prisoner); Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 52-53, 15 January 2009; and Opuz v. Turkey, no. 33401/02, § 129, ECHR 2009 (killings in the context of domestic violence); Van Colle v. the United Kingdom, no. 7678/09, § 88, 13 November 2012 (killing of a witness); Kılıç v. Turkey, no. 22492/93, § 63, ECHR 2000-III; and Mahmut Kaya v. Turkey, no. 22535/93, § 88, ECHR 2000-III (killing of an individual in a conflict zone); and Yabansu and Others v. Turkey, no. 43903/09, § 91, 12 November 2013 (killing of an individual by a third party during military service)).

54. Moreover, the positive obligations may apply not only to situations concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, but also in cases raising the obligation to afford general protection to society (see Maiorano and Others v. Italy, no. 28634/06, § 107, 15 December 2009; and Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, § 32, 12 January 2012). In the latter circumstances, the positive obligation covers a wide range of sectors (see Ciechońska v. Poland, no. 19776/04, §§ 62-63, 14 June 2011) and, in principle, will arise in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004-XII; and Bljakaj and Others v. Croatia, no. 74448/12, § 108, 18 September 2014).

55. In the present case the Court observes that the landmine which exploded and injured the applicant had been planted approximately 500 metres from the Cevizyatağı gendarmerie station. That area had previously been regularly used by the gendarmerie for exploration and surveillance purposes and shortly after the incident the gendarmes formed the opinion that the landmine had been planted by members of the PKK (see paragraph 8 above). In light of the foregoing the Court considers that the facts in issue engaged the responsibility of the State under Article 2 of the Convention and thus necessitated for the applicant in order to adequately exhaust domestic remedies, to approach the relevant national court with a claim that the court establish whether the gendarmes ought to have been aware of the landmines in the area and the risks posed by them to the lives of those living in the vicinity and, if so, whether they took the necessary steps to check or clear the area with a view to preventing that risk from materialising.

56. The Court recalls, in this connection, that the purpose of the exhaustion rule under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are available and effective, that relate to the breaches alleged and that are capable of redressing the alleged violation (see, among others, Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)).

57. The Court notes that in the instant case, there is no allegation that the landmine that severely wounded the applicant had been laid by the security forces. The applicant’s complaint rather concerns the positive obligations of the respondent State under Article 2 of the Convention to take appropriate preventive steps to safeguard the lives of those within its jurisdiction vis-à-vis terrorist acts. With that in mind, the applicant was only required to resort to those remedies which were capable of establishing the responsibility of the State in that regard and to offer him adequate redress, including any administrative remedies as may be available, which have often been considered as adequate in similar contexts where the infringement of the right to life or physical integrity was not caused intentionally (see, mutatis mutandis, Murillo Saldias and Others v. Spain (dec.), no. 76973/01, 28 November 2006; Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 111, ECHR 2008 (extracts); and Nencheva and Others v. Bulgaria, no. 48609/06, § 110, 18 June 2013).

58. Turning to the remedies available in the instant case, the Court notes that although a criminal investigation was initiated ex proprio motu by the public prosecutor in the aftermath of the incident, all the evidence in the case file (the incident report, witness statements and the ballistic report) indicates that the investigation had from the very beginning been aimed at identifying the PKK terrorists who were believed to have mined the area, and had not been geared towards establishing the responsibility of State agents for the injury sustained by the applicant. In these circumstances, and bearing also in mind that it has been stagnant since 2001, the criminal investigation in question can hardly be considered to have been capable of offering the applicant redress in relation to his particular complaints brought before the Court (see, mutatis mutandis, Seyfettin Acar and Others v. Turkey, no. 30742/03, § 24, 6 October 2009), which must have also become apparent to the applicant long before he lodged his application with the Court on 23 March 2010 (see, mutatis mutandis, Dursun v. Turkey (dec.), no. 3424/09, § 28, 4 September 2012).

59. As for the administrative remedies, the Court considers, a priori, that by virtue of Article 125 of the Constitution (see paragraph 30 above), the Van Administrative Court before which the applicant chose to bring the substance of his Article 2 complaints had the competence to establish the facts surrounding the incident, to engage the responsibility of a particular State authority for the accident, including any objective or subjective responsibility (see, respectively, mutatis mutandis, Dönmez and Others v. Turkey (dec.), no. 20349/08, 17 June 2014; and Akdemir and Evin v. Turkey, nos. 58255/08 and 29725/09, §§ 64 and 68, 17 March 2015), and to provide reparation for the applicant’s damages as appropriate (see also the judgment of the Güroymak Civil Court of First Instance in paragraph 18 above on the duties of the administrative courts in this regard). It therefore had the potential to offer the applicant adequate redress in relation to his specific complaints, which the applicant does not contest. The Court, however, observes that the Van Administrative Court was precluded from examining the merits of the applicant’s case owing to his failure to comply with the domestic procedural rules on two separate occasions. The Court notes in this regard that the applicant alleges the arbitrariness of only the first administrative court decision dismissing his case on procedural grounds, which allegation the Court, however, cannot examine as it falls outside the six-month time-limit as already declared above (see paragraph 34).

60. In the light of the foregoing, the Court concludes that the applicant has failed to make proper use of the administrative remedy available to him in relation to his complaint under Article 2 of the Convention. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

61. As for the applicant’s complaint under Article 13 of the Convention, the Court has already established that in respect of his complaint under Article 2, the applicant had at his disposal an effective remedy which he failed duly to use. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. 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

63. The applicant claimed 112,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage.

64. The Government contested these claims, arguing that there was no causal link between the alleged violations of the Convention and the purported damages. They also considered the sums requested to be excessive and submitted that awarding such amounts would lead to unjust enrichment.

65. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

66. The applicant claimed EUR 1,010 for the costs and expenses incurred before the domestic courts. This sum included court expenses and postage fees and relevant receipts have been provided to the Court. He also claimed EUR 200 for the costs and expenses incurred before the Court but did not submit any documentation in support of his claim.

67. The Government contested those claims, deeming them unsubstantiated.

68. 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 are reasonable as to quantum. In the absence of supporting documents, it makes no award in respect of costs and expenses incurred before the Court. As for the costs and expenses in the domestic proceedings, the Court notes that they were not incurred in order to seek redress for the Convention violation that has been found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; and Guisset v. France, no. 33933/96, § 93, ECHR 2000-IX). Therefore, the Court makes no award under that head either.

C. Default interest

69. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 of the Convention concerning the length of the second set of compensation proceedings before the Van Administrative Court and the Supreme Administrative Court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

3. 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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 23 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith András Sajó
Registrar President

1. Also referred to as “Darı Kolink hill” in some documents.

1. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000

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You are here: BAILII >> Databases >> European Court of Human Rights >> ERCAN BOZKURT v. TURKEY - 20620/10 - Chamber Judgment [2015] ECHR 612 (23 June 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/612.html Cite as: [2015] ECHR 612