SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41317/05 by Serdar Tamer KAYGAN and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 20 October 2009 as a Chamber composed of:

Françoise Tulkens, President, Ireneu Cabral Barreto, Danutė Jočienė, András Sajó, Nona Tsotsoria, Işıl Karakaş, Kristina Pardalos, judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 24 October 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Serdar Tamer Kaygan, Ms E Kaygan and Mr A. Kaygan, are Turkish nationals who were born in 1968, 1962 and 1994 respectively and live in Istanbul . They were represented before the Court by Mr K. Tacar Çağlar, a lawyer practising in Ankara . The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The second applicant, whose regular check-ups during her pregnancy were carried out by a private hospital, gave birth to the third applicant on 31 January 1994. The third applicant was born with serious disabilities.

On 27 January 1995 the applicants initiated civil proceedings before the Ankara Court of First Instance (hereinafter “the Ankara court”) against the hospital and doctors, claiming pecuniary and non-pecuniary damage.

On 10 July 1995 the Ankara court requested an expert report from the Ministry of Health as to the liability of the defendant hospital and the doctors. The report was delivered on 19 September 1996 and found that no negligence was attributable to the defendant party. Subsequently four more medical reports, drawn up by various specialist bodies on 19 April 1998, 11 March and 8 December 1999 and 1 March 2001, were submitted to the Ankara court. It was established in these reports that the hospital and the doctors involved had in fact been partly responsible for the third applicant ’ s disabilities, which had been assessed at 100%.

On 7 November 2000 the applicants lodged a second case with the Ankara court, requesting additional compensation for non-pecuniary damage.

On 12 December 2000 the Ankara court ordered the two cases to be joined and on 16 May 2001 it awarded the applicants their claim in full for both cases. The defendant party appealed.

On 21 December 2002 the Court of Cassation upheld the judgment in respect of the award granted for the first case and quashed in so far as it concerned the second case. Relying on Article 126 of the Code of Obligations, the Court of Cassation held that the second case had been introduced out of time since the first and second applicants had been aware of the serious disabilities and their extent when the third applicant was born. Thus, any claim had had to be introduced within five years of the third applicant ’ s date of birth. The case was remitted to the Ankara court.

On 19 July 2002 the Ankara court confirmed in its earlier judgment and held that it was only by having regard to the report dated 8 December 1999 that the third applicant ’ s disability had been established at 100%. Therefore the applicants ’ further claims had been introduced within the statutory time-limit. The case file was transferred to the Grand Chamber of the Court of Cassation ’ s Civil Division ( Hukuk Genel Kurulu ).

On 11 December 2002 the Grand Chamber of the Court of Cassation quashed the judgment of the Ankara court. In its decision it discussed in detail the concept of damage, when it arose and when the statutory time-limit for claiming damages had started to run for the instant case. It noted in particular that the seriousness of the third applicant ’ s disability had been visible at birth on 31 January 1994 and, according to medical reports, would not change in time for better or worse. Therefore the five-year statutory time-limit for claiming damages ought to have started running at birth.

The applicants appealed. On 28 May 2003 the Grand Chamber of the Court of Cassation ’ s Civil Division dismissed the appeal. The case was remitted to the Ankara court, which held on 9 October 2003 that there was no need to issue a new judgment concerning the applicants ’ first claim, which had already become final, whereas their second claim had been introduced outside the statutory time-limits, as established by the Court of Cassation.

The applicants appealed in respect of the costs and fees.

On 3 March 2005 the Court of Cassation amended the part of the judgment concerning the applicants ’ costs and fees but upheld the merits.

The applicants were notified of the judgment on 20 April 2005.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the length of the civil proceedings had exceeded the reasonable time requirement. They maintained in particular that the Ankara court, by not giving deadlines for the various reports it had requested, had failed to expedite the proceedings. That failure had eventually led them to miss the statutory time-limit.

The applicants further argued under Article 13 of the Convention that the Court of Cassation had misinterpreted the law when quashing the Ankara court ’ s judgment, and had thus deprived them of their right to an effective remedy under the domestic law.

THE LAW

The Government argued that the applicants had not complied with the six-month time-limit laid down in Article 35 § 1 of the Convention because they had failed to lodge their application with the Court within six-months from the communication to them of the final domestic court decision on 20 April 2005.

The applicants responded that, under the applicable domestic legislation they had a period of fifteen days, which had started when the domestic court decision was communicated to them on 20 April 2005, within which they could have requested a rectification of the decision. Thus, in the opinion of the applicants, the domestic court decision had not become final until that fifteen-day period had ended on 6 May 2005.

The Court observes at the outset that the rectification procedure referred to by the applicants is a special procedure, set out in Article 440 of the Code of Civil Procedure, allowing parties to a civil case to ask the Court of Cassation to re-examine its decision with a view to eliminating alleged errors of fact or law. This particular procedure has previously been examined by the Court (see Gök and Others v. Turkey , nos. 71867/01, 71869/01, 73319/01 and 74858/01, §§ 47-48, 27 July 2006 and the cases cited therein) and it has repeatedly held that the rectification recourse does not have to be exhausted as it is not an ordinary remedy ( ibid. § 48; see also Elif Akın and Others v. Turkey (dec.), no. 27742/02, 29 January 2008). Indeed, the applicants in the present application did not make use of that remedy.

The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria , 29 August 1997, § 33, Reports of Judgments and Decisions 1997 ‑ V ).

In line with the above, in cases against Turkey , the Court regularly takes as the starting point for the running of the six-month period the date of service of the decisions of the Court of Cassation ’ s Civil Division on the applicants ( ibid. ).

In the present application it is not disputed by the applicants that they had been served with the Court of Cassation ’ s final decision on 20 April 2005. Nevertheless, the application was not lodged with the Court until 24 October 2005, that is more than six months later.

It follows therefore that application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Françoise Tulkens Deputy Registrar President