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AS TO THE ADMISSIBILITY OF

Application No. 36216/97

by Nurhan TOSUNBAS

Gökhan TOSUNBAS

Okan TOSUNBAS

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

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 20 December 1996

by Nurhan TOSUNBAS, Gökhan TOSUNBAS and Okan TOSUNBAS against Turkey

and registered on 24 May 1997 under file No. 36216/97;

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 applicants, born in 1960, 1985 and 1989 respectively, are

Turkish citizens and resident in Ankara. They are represented before

the Commission by Mr Nazim Ata, a lawyer practising in Ankara.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

On 10 August 1990 Tugrul Tosunbas, the husband of the applicant

Nurhan Tosunbas and the father of the two other applicants, died in

collision with a train while he was crossing a railway in his car.

On 18 October 1990 the applicants brought an action before the

Ankara Civil Court of General Jurisdiction against the State Railways

Company (Devlet Demiryollari, the DDY). They submitted that a train had

crashed into Tugrul Tosunbas's car, as a result of which he had died,

the DDY having failed to take the required technical measures at a

level crossing (hemzemin geçit). Accordingly, the applicants asked the

court to order that a certain amount of pecuniary and non-pecuniary

compensation be paid to them by the DDY.

The Ankara Civil Court of General Jurisdiction appointed experts

to establish the respective fault of the parties in the accident.

On 12 July 1992 the experts submitted their report to the court

stating that 25 % of the fault in the accident was attributable to the

DDY, as it had not taken sufficient measures to prevent accidents, and

75 % of the fault to the driver of the car as he had not stopped at the

level crossing.

The DDY filed an objection with the court against the conclusion

of the experts' report. They submitted that the experts appointed by

the court were not experts on railway transportation. Therefore, the

court appointed new experts from the istanbul Technical University.

On 20 May 1993 these experts submitted their report to the court.

They considered that there was no fault attributable to the DDY and

that the driver of the car was 100 % at fault in the accident as he had

not stopped at the level crossing.

The applicants filed an objection with the court against the

conclusion of the experts. At the applicants' request the court again

appointed a commission of experts on transportation from the istanbul

Technical University.

On 23 March 1995 the commission of experts submitted a final

report to the court. This report also stated that the driver of the car

had been 100 % at fault, for the same reasons, and that there was no

fault attributable to the DDY.

On 12 June 1995 the Ankara Civil Court of General Jurisdiction,

relying on the conclusions of the commission of experts, refused the

applicants' request for compensation as the DDY could not be held

responsible for the accident. The court also recalled that, in the

criminal proceedings instituted against him, the driver of the train

had been acquitted by the Kalecik Criminal Court on the ground that no

fault was attributable to him.

On 31 August 1995 the applicants lodged an appeal with the Court

of Cassation against the judgment of the Ankara Civil Court of General

Jurisdiction.

On 10 April 1996 the Court of Cassation dismissed the applicant's

appeal. It upheld the judgment of the Ankara Civil Court of General

Jurisdiction with its reasoning and assessment of the evidence.

On 13 May 1996 the applicants applied to the Court of Cassation

for rectification of its decision.

On 28 June 1996 the Court of Cassation dismissed the applicants'

request for rectification.

COMPLAINTS

1. The applicants complain that the length of the civil proceedings

exceeded the reasonable time requirement under Article 6 para. 1 of the

Convention.

2. The applicants further complain under Article 6 para. 1 of the

Convention that their right to a fair trial was breached as the

national courts refused their request for compensation.

THE LAW

1. The applicants complain that the length of the civil proceedings

exceeded the reasonable time requirement under Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission notes that the period to be taken into

consideration began on 18 October 1990, when the applicants brought an

action for compensation before the Ankara Civil Court of General

Jurisdiction. The proceedings ended on 28 June 1996, when the Court of

Cassation dismissed the applicants' request for rectification of its

earlier decision. The proceedings thus lasted 5 years, 8 months and 10

days.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the criteria laid down

in the established case-law, in particular the complexity of the case

and the conduct of the applicant and of the relevant authorities (see,

Eur. Court HR, Vernillo v. Italy judgment of 20 February 1991, Series

A no. 198, p.12, para. 30; Monnet v. France judgment of 27 October

1993, Series A no. 273-A, p. 11, para. 27). Furthermore, the Convention

organs also consider it appropriate to make an overall assessment of

the length of proceedings in some cases (see e.g. Eur. Court HR, Cifola

v. Italy judgment of 27 February 1992, Series A no. 231, p. 9,

para. 14).

The Commission also recalls that according to the case-law of the

Convention organs, the exercise of the right to a hearing within a

reasonable time is subject, in civil cases, to diligence being shown

by the party concerned (see Eur. Court HR, Pretto and Others v. Italy

judgment of 8 December 1983, Series A no. 71, p. 14, para. 33). In

addition, only delays attributable to the national authorities may

justify a finding of failure to comply with the "reasonable time"

requirement (see, for example, Eur. Court HR, H v. United Kingdom

judgment of 8 July 1987, Series A no. 120-B, p. 59, para. 71).

As to the complexity of the case, the Commission finds that the

proceedings before the Ankara Civil Court of General Jurisdiction were

not simple. The issue before the court was a relatively complex one as

it concerned questions which required technical expertise on railways.

As regards the conduct of the applicants, it appears that they

did not object to the appointment of new experts of the opposite party.

In fact, they asked themselves for the consultation of yet another

expert team when they were dissatisfied with the second expert report.

They apparently never complained to the court of the time which the

various experts used for preparing their reports. At least part of the

delay caused by the consecutive consultation of three expert teams, and

in particular the period of one year and ten months between the

submission of the second and third expert reports (May 1993-March

1995), is therefore attributable to the applicants themselves.

As regards the conduct of the Turkish authorities, the Commission

notes that the applicants' case was dealt with by two levels of

jurisdiction and three sets of proceedings over 5 years, 8 months and

10 days.

It is true that the appointment of the first group of experts,

who were not specifically experts on railways, by the Ankara Civil

Court of General Jurisdiction caused a certain delay as their

conclusion was contested by the opposite party. However, the delay

caused by this fact was not very substantial, the period between the

submission of the first and second reports having been only some ten

months (July 1992-May 1993).

Following receipt of the final report drafted by the commission

of experts, the Ankara Civil Court of General Jurisdiction dealt

speedily with the applicants' action for compensation. The court

decided the case on 12 June 1995, that is two months and 20 days after

submission of the experts' third report on 23 March 1995.

The Court of Cassation dealt with the case in two sets of

proceedings. In particular, following the applicants' appeal on 31

August 1995, the Court of Cassation delivered its decision on 10 April

1996, that is less than eight months later. Furthermore, the Court of

Cassation dealt with the applicants' request for rectification of 13

May 1996 already on 28 June 1996, that is one month and 16 days later.

Accordingly, there was no unreasonable delay in the Court of

Cassation's proceedings.

Looking at the case as whole, the Commission therefore finds that

despite the long period spent on the taking of expert evidence, the

Turkish courts cannot be deemed responsible for any delay such as to

render the length of the proceedings unreasonable within the meaning

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.

2. The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention that their right to a fair trial was

breached as the national court refused their request for compensation.

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

Convention its sole task is to ensure 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. 18.10.95, D.R. 83, p. 77).

In this case, the Commission notes that the applicants'

complaints concern the national courts' evaluation of the facts and the

evidence and their interpretation of the domestic law. The Ankara Civil

Court of General Jurisdiction held, under domestic law and in the

particular circumstances of the case, that the DDY (State Railways

Company) could not be held responsible for the accident. It therefore

refused the applicants' claim for compensation. The Commission finds

no evidence or basis on which to conclude that the Ankara Civil Court

of General Jurisdiction, in establishing the facts or interpreting the

domestic law, acted in an arbitrary or unreasonable manner. In

particular, the applicants could put forward their arguments and in

fact obtained the consultation of further experts at their request.

Therefore, there is no appearance of a violation of the applicants'

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

It follows that this part of the application must also 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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TOSUNBAS v. TURKEY

TOSUNBAS v. TURKEY

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