Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27695/95

by Mine ASÇIOGLU

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 May 1995 by

Mine ASÇIOGLU against Turkey and registered on 26 June 1995 under file

No. 27695/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1964, is a Turkish citizen

resident in Antalya.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 7 December 1991 while the applicant was travelling from

Antalya to Ankara by bus, there was a traffic accident in which she was

heavily injured losing the sight of her left eye.

The applicant started compensation proceedings before the Ankara

Commercial Court against the responsible transportation company.

On 17 September 1994 the Ankara Commercial Court, taking into

account the economic situation of the country, the current high prices

and the social status of the parties, granted the applicant 400,000,000

Turkish Lira for her non-pecuniary damage with interest at the rate of

48% per year running from the date of the accident.

The applicant appealed to the Court of Cassation claiming that

the amount of compensation awarded was too low and challenged the

interest rate applied.

On 3 October 1994 the Court of Cassation quashed the judgment of

the Ankara Commercial Court on the ground that the official rate of

interest, which should be applied in the instant case, was 54.5% per

year, as requested by the applicant. The Court of Cassation also

confirmed the judgment of the first instance court as regards the

amount of the compensation. The case was referred back to the Ankara

Commercial Court which applied the decision of 3 October 1994 of the

Court of Cassation.

The applicant applied for a rectification of this decision on the

ground that the Court of Cassation had failed to give reasons for its

decision concerning the amount of compensation. On 20 January 1995 the

Court of Cassation rejected her application referring to the contents

of the file and the reasoning of the first instance court's decision.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that her right to a fair trial was breached as the national courts

granted her insufficient compensation and applied an inadequate rate

of interest.

2. The applicant further complains under Article 6 para. 1 of the

Convention that the decision of the Court of Cassation was not reasoned

and therefore her right to a fair trial was violated.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that her right to a fair trial was breached as the national

courts decided to grant her an insufficient amount of compensation and

interest rate.

The Commission may leave open the question whether the applicant

has exhausted domestic remedies for her loss due to the insufficient

interest rate since in any event her complaint must be rejected for the

following reasons.

The Commission recalls that under Article 19 (Art. 19) of the

Convention, its sole task is to ensure the observance of the

engagements undertaken by the High Contracting Parties in the

Convention. It is not competent to examine applications concerning

errors of law or fact allegedly committed by the competent national

authorities, which are competent in the first place to interpret and

apply domestic law (No. 25062/94, Dec. 18.10.1995, D.R. 83, p. 77).

In this case, the Commission first notes that the judgments of

the Ankara Commercial Court and the Court of Cassation were given on

the basis of domestic law and the particular circumstances of the case.

The Commission considers that the applicant's complaint concerns the

national courts' evaluation of the facts and evidence and

interpretation of domestic law.

The Commission also observes that the interest rate has been

reviewed by the Court of Cassation in accordance with the applicant's

request.

Therefore the Commission finds no evidence or basis on which to

conclude that the courts, in establishing the facts or interpreting the

law, acted in an arbitrary or unreasonable manner.

Consequently, there is no appearance of a violation of the

applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention

and this part of the application must be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that the Court of Cassation's decision

concerning the amount of compensation was not reasoned.

The Commission accepts that under specific circumstances the

absence of reasons in a court decision might raise an issue as to the

fairness of the procedure which is guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention. It refers, however, to the case of Hiro

Balani v. Spain (cf., Eur. Court HR, judgment of 9 December 1994,

Series A, no. 303, pp. 23-37, para. 27), where the Court held that,

while Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons

for their judgments, it cannot be understood as requiring a detailed

answer to every argument. The extent to which this duty to give reasons

applies may vary according to the nature of the decision. It is

moreover necessary to take into account, inter alia, the diversity of

the submissions that a litigant may bring before the courts and the

differences existing in the Contracting States with regard to statutory

provisions, customary rules, legal opinion and the presentation and

drafting of judgments. That is why the question whether a court has

failed to fulfil the obligation to state reasons, deriving from Article

6 (Art. 6) of the Convention, can only be determined in the light of

the circumstances of the case.

In the present case it is clear from the two decisions of the

Court of Cassation that the court in fact considered the applicant's

arguments and found no objection to the reasoning in the Ankara

Commercial Court's judgment. The Commission considers that in these

circumstances there is no appearance of the proceedings having been

unfair and contrary to the requirements of Article 6 para. 1 (Art. 6-1)

of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27, para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ASCIOGLU v. TURKEY

ASCIOGLU v. TURKEY

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