SECOND SECTION

DECISION

Application no . 4447/08 Yaşar ÇELEBİ and Ş aban ÇELEBİ against Turkey

The European Court of Human Rights (Second Section), sitting on 21 May 2013 as a Chamber composed of:

Guido Raimondi, President, Danutė Jočienė , Peer Lorenzen , András Sajó , Işıl Karakaş , Nebojša Vučinić , Helen Keller, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 16 January 2008,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Şaban Çelebi (“the applicant”) and Mr Yaşar Çelebi (“the second applicant”) are Turkish nationals, who were born in 1963 and 1962 respectively and live in Zonguldak . They are represented before the Court by Mr M. Büyükyılmaz , a lawyer practising in Zonguldak . Their father died on 27 November 2003, allegedly from pneumoconiosis [1] .

The facts of the case, as submitted by the applicants and according to the case file, may be summarised as follows.

On 31 May 2004 the applicant, together with his mother, sisters and brothers, instituted compensation proceedings before the Zonguldak Labour Court. They complained that their husband/father had been suffering from an occupational disease and had died as a result.

On 5 April 2005, the first-instance court awarded non-pecuniary damages for death from pneumoconiosis, an occupational disease, and complications associated with it. It based its decision on a report by the Medical Council of the Zonguldak Lung and Occupational Diseases Hospital.

On 25 October 2005 the Court of Cassation quashed the judgment on the grounds that expert evidence should have been sought from the Social Insurance Supreme Health Board and, in the event of objection, from the Forensic Medicine Institute.

On 20 October 2006 the Social Insurance Supreme Health Board held, on the basis of the case file, that the death had not occurred as a result of the occupational disease. No reasoning was provided.

The plaintiffs filed an objection against the expert opinion, so the case file was referred to the Forensic Medicine Institute.

The First Specialist Committee of the Forensic Medicine Institute – composed of three forensic medicine specialists, one pathologist, one internal diseases specialist, one cardiologist, one surgeon, one neurosurgeon, one anaesthetist and reanimation specialist, one gynaecologist, and one lung diseases and tuberculosis specialist – observed that the deceased had worked as an excavator and miner in Turkish Coal Institution mines between 1953 and 1980, had retired on 19 December 1980 and had died on 27 November 2003. It noted, in particular, that according to a report by the health board of the Istanbul Occupational Diseases Social Insurance Institution Hospital dated 19 January 1988, the deceased had been diagnosed with occupational pneumoconiosis and a hearing impairment caused by exposure to noise, and that his disability had been rated at 43.2%. According to a report by the same health board dated 14 April 1989, the deceased had had pneumoconiosis, decreased respiratory functions (medium level), and a hearing impairment caused by exposure to noise; his disability had been rated at 43.36%. The committee further noted that the diseased had been admitted to the Karadeniz EreÄŸli Social Insurance Institution Hospital on 19 November 2003 for hypoglycaemia and an infection of the lower respiratory tract, and had died on 27 November 2003; the cause of death had been recorded as “respiratory and circulatory failure, pneumoconiosis”, whereas in the report of the Medical Council of the Zonguldak Lung and Occupational Diseases Hospital dated 29 December 2004, the cause of death had been determined as pneumoconiosis and complications associated with it. The committee took into account the decision of the Supreme Health Board and an x ‑ ray dated 20 November 2003.

The Forensic Medicine Institute issued its opinion on 7 March 2007, the conclusion of which reads as follows:

“Since no observation was made of the changes to the organs through an autopsy carried out in a timely manner, the death mechanism could not be determined. However, considering the length of time between the withdrawal from the occupation and death, the deceased ’ s age and radiological findings, on the basis of the information (we have) it is unanimously held that the death did not occur as a result of the occupational disease and that there is no medical evidence suggesting that the occupational disease was a factor in the death.”

The Zonguldak Labour Court observed that the plaintiffs ’ relative had died in 2003 at the age of 68, having worked for the Turkish Coal Institution between 1953 and 1980 as an excavator and miner. It referred to the expert opinions which had concluded that the death had not occurred as a result of an occupational disease. It further observed that there was no evidence that the deceased ’ s disability, rated at 43.36% in 1989, had progressed and caused his death, and that he had received continuous treatment for his disease.

Relying on those observations, the Zonguldak Labour Court dismissed a request for fresh expert evidence from the Council of Medical Schools and rejected the case on 15 May 2007.

On 21 June 2006 the Court of Cassation upheld the judgment.

Although the applicants became aware of the final decision on 23 July 2007, it was not served on them until 30 May 2008.

COMPLAINTS

The applicants complain, under Articles 2 and 6 of the Convention, that their father worked for years in coal mines operated by the State Party and that owing to his long-term exposure to coal dust and mine gases, he contracted pneumoconiosis, an incurable, progressive and deadly occupational disease that left him 43.36% disabled prior to his death and caused his death. They allege that the State Party failed to take measures to safeguard the physical integrity and life of their father.

The applicants further call into question the expert opinions issued by the Social Insurance Institution ’ s Supreme Health Board and the Forensic Medicine Institute. According to the applicants, those institutions form part of the administration and cannot be considered as independent and impartial. They further allege that the doctors who drew up the expert reports had no expertise in the field.

THE LAW

1. The Court observes first of all that as regards applications lodged against the respondent State, its jurisdiction ratione temporis commences on 28 January 1987, the date on which Turkey recognised the right of individual petition (see Su rp Pirgiç Ermeni Hastanesi Vakfı v . Turkey ( dec. ), no. 50147/99, 14 June 2005, and Akıllı v. Turkey , no. 71868/01, § 18, 11 April 2006). Consequently, the Court has no jurisdiction to deal with complaints that contain allegations of violations based on facts occurring before the above-mentioned critical date.

According to the Court ’ s case-law, notably its judgment in the case of Blečić v. Croatia ([GC], no. 59532/00, ECHR 2006-III), its temporal jurisdiction is to be determined in relation to the facts that constitute the alleged interference.

Turning to the circumstances of the present case, t he Court considers that any failure on the part of the State Party to take preventive measures in respect of coal miners and the deceased ’ s health in particular, and to advise and inform him about the possible risk to his health caused by exposure to coal dust, concerns the positive obligations of the respondent State to safeguard life and physical integrity. In this connection, the Court observes that the scope of the rights relied on is limited to events that occurred prior to 19 December 1980, the date on which the deceased retired . Therefore, the Court can only hold that it has no jurisdiction ratione temporis to deal with this complaint.

In so far as this part of the application is concerned, the application must be rejected for lack of jurisdiction ratione temporis , i n accordance with Article 35 §§ 3 and 4 of the Convention.

2. To the extent that the procedural aspect of Article 2 and Article 6 relate to the events that occurred after the critical date, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaints. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The Court notes that no information has been submitted in respect of the domestic remedies exhausted by the second applicant, or the reasons for which he was unable to make use of them, despite a request by the Registry dated 9 November 2012. It is understood from the documents submitted by the applicants that the second applicant was not a party to the civil proceedings pursued at the domestic level.

It follows that the application in respect of the second applicant must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court:

Declares by a majority the complaint concerning Article 2 of the Convention in its substantive aspect inadmissible as being incompatible ratione temporis ;

Declares unanimously the application inadmissible for non-exhaustion of domestic remedies in so far as th e second applicant is concerned;

D ecid es to adjourn the examination of the remainder of the application.

Stanley Naismith Guido Raimondi Registrar President

[1] . It is generally accepted that pneumoconiosis is an occupational pulmonary disease, caused by the inhalation of dust and other particles and their deposit in the lungs. Coa l workers' pneumoconiosis is also known as “ black lung disease ”.