SECOND SECTION

DECISION

Application no. 26769/10 Mehmet Emin GÃœNEÅž and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 18 May 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 6 April 2010,

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

1. A list of the applicants is set out in the appendix.

2. The Turkish Government (“the Government”) were represented by their Agent.

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

4. On 3 May 2004 a large underground explosion took place in the Toptancılar Sitesi area of Batman, which is located in close proximity to the Tüpraş Batman Oil Refinery (“Tüpraş”, a State-owned enterprise until its privatisation in 2005), and to an oil storage and supply facility run by the Ministry of Defence (hereinafter “ANT”). The explosion and ensuing fire resulted in three deaths and many injuries, and damaged many properties in the vicinity, including, allegedly, the property at issue in the present case, which is located on plot no. 232/1 (block no. 1, unit no. 11).

5. Further background information on the explosion, as well as the ensuing administrative and judicial developments, have been outlined in the case of Kurşun v. Turkey (no. 22677/10, §§ 7-45, 30 October 2018).

6 . On 5 May 2005, the applicants jointly purchased the property at issue (unit no. 1) from a third party.

7. On 24 March 2011 the second applicant bought the shares of the other applicants and became the sole owner of the property. On 2 June 2014 he sold it to a third party.

8. The first applicant was also a co-owner of another property (block no. 1, unit no. 12), which was adjacent to the property at issue.

9 . On 3 May 2005 the co-owners of the unit no. 12, including the first applicant, brought an action for compensation against both Tüpraş and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court”), seeking compensation for the alleged depreciation of the value of their property after the explosion.

10. On 23 February 2007 the Batman Civil Court rendered its decision concerning the unit no. 12. No information has been provided by the parties as to the final outcome of those proceedings.

11 . On 27 February 2007 the applicants brought an action before the Batman Civil Court against Tüpraş, requesting 65,000 Turkish liras (approximately 35,460 euros at the material time) for the alleged depreciation of the value of their property (unit no. 11) after the explosion. The applicants mainly argued that following the incident, Toptancılar Sitesi had been evacuated, which had significantly reduced the value of their property. They also stated that the sole responsibility of Tüpraş for the explosion had now been definitively established, as a judgment delivered by the Batman Civil Court against Tüpraş in case no. 2004/966 E. had been upheld by the Court of Cassation (for further details concerning that judgment which was the first occasion on which the Tüpraş Refinery was publicly confirmed as the source of the leak by a court of law, as well as the decision of 30 January 2007 of the Court of Cassation upholding that judgment, see Kurşun, cited above, §§ 42-45).

12 . On 16 May 2008, the Batman Civil Court rejected the applicants’ action as time-barred. It held that the applicants’ claim concerned a tortious act under Article 60 § 1 of the Code of Obligations, which required compensation claims to be introduced within one year of the date on which the victim became aware of the damage and the party responsible for the damage. Referring to the action brought on 3 May 2005 by the co-owners of the unit no. 12 (see paragraph 9 above), the court considered that the applicants (sic) had already brought a compensation claim on that date in relation to the incident. It further held that the applicants must have become aware of the act in question and the party responsible by that date at the latest. Accordingly, it found that the applicants’ action had not been brought within the applicable one-year time ‑ limit. The court also stated that although criminal charges had also been brought against TüpraÅŸ executives in connection with the explosion in question, those charges had not concerned the offences mentioned in Article 465 of the former Criminal Code which would trigger the application of the longer criminal prescription period to the civil proceedings at issue (see paragraphs 17 to 19 below).

13. The applicants appealed against that judgment. They mainly argued that the relevant time-limit could not be triggered unless the victim had certain and exact knowledge of the identity of the tortfeasor. They also argued that the action referred to by the Batman Civil Court had been intended essentially to determine the identity of the party responsible. They further claimed that they had only acquired the requisite knowledge of the tortfeasor upon the finalisation of case no. 2004/966 E. on 30 January 2007. The applicants also argued that the first-instance judgment had contradicted decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. They further maintained that the special time-limit provided for in Article 60 § 2 of the former Code of Obligations should have been applied to the claim at issue.

14. On 28 April 2009 the Court of Cassation dismissed the applicants’ appeals.

15. On 8 October 2009 it also dismissed the applicants’ rectification requests.

16. Under Article 60 § 1 of the Code of Obligations (Law no. 818) in force at the material time (“the former Code of Obligations”), an action for compensation for damage would become time-barred one year after the date on which the damage and the identity of the author thereof became known ( ıttıla ) or, at the latest, ten years after the commission of the act that had caused the damage.

17 . The same provision provided in its second paragraph that where the compensation claim originated in an act which also constituted an offence under criminal law that was subject to a longer prescription period, then that longer period would also apply in the action for compensation.

18. Under Article 465 of the former Criminal Code (Law no. 765), employers and companies were financially liable for the damage resulting from the offences set out in Articles 455 and 459 of the same Code if such offences were committed by their employees in the performance of their duties.

19 . In a judgment of 27 June 2001 (E. 2001/4-472 K. 2001/547) cited by the Government, the Joint Civil Chambers of the Court of Cassation held that it was a well ‑ established principle that the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply only to the civil proceedings brought against those persons who had committed an offence or had participated in that offence; the longer prescription period could therefore not apply to the civil proceedings brought against the employers or those who were merely financially liable for the offences at issue. The Joint Civil Chambers further noted that Article 465 of the former Criminal Code provided an exception to that principle. Thus, where a civil claim was brought against an employer or a company for the damage resulting from the offences mentioned in Article 465 of the Criminal Code and committed by its employees, the longer prescription period within the meaning of Article 60 § 2 of the former Code of Obligations would apply to that claim.

THE LAW

20. The applicants complained that they had been denied a fair trial on account of the dismissal of their action as being out of time pursuant to Article 60 § 1 of the former Code of Obligations. They further complained that the longer prescription period envisaged under Article 60 § 2 of the former Code of Obligations should have applied in the proceedings at issue. They also alleged that the domestic courts’ decisions dismissing their additional actions had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion.

21. The applicants further maintained that the decisions of the Court of cassation dismissing their appeals and rectification requests had lacked reasoning.

22 . In their observations dated 14 October 2017, the applicants also complained that their claims should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

23. The applicants maintained that under Article 60 § 1 of the former Code of Obligations, an action for damages had to be brought within one year of both the identity of the wrongdoer and the damage sustained becoming known to the victim.

24 . The applicants argued that they could not be expected to have known with certainty the identity of the wrongdoer and the amount of the damage they had suffered at the material time. They maintained in this connection that mere suspicions as to responsibility were not enough to set off the time ‑ limit. According to them, the decisions dismissing their action had not been in compliance with the practice of the Court of Cassation and had contradicted the decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion.

25. The applicants further claimed that the longer prescription period envisaged under Article 60 § 2 of the former Code of Obligations should have applied in the proceedings at issue.

26 . The Government maintained that it fell on the national judges to interpret the application of domestic law. In the absence of any arbitrariness in the interpretation of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations by the relevant domestic courts, the applicants’ complaint in this regard was of a fourth-instance nature.

27. The Government added that the damage and the identity of the tortfeasor had become well known through the media soon after the incident, and that some property owners in the area had thus been able to bring cases against Tüpraş within the prescribed time-limit. Moreover, according to the Government, the Court of Cassation’s relevant case-law had made it clear that the fact that the tortfeasor had been identifiable would have been sufficient to bring an action.

28. As for the applicants’ complaint concerning Article 60 § 2 of the former Code of Obligations, the Government argued that the domestic courts’ conclusion in that regard was in line with the case-law of the Court of Cassation (see paragraph 19 above).

29. The Court notes at the outset that the applicants purchased the property at issue more than a year after the explosion (see paragraph 6 above). As the procedure complained of by the applicants concerned the alleged depreciation of the value of their property as a result of the explosion which occurred long before the applicants bought it, a question might arise as to whether there was a genuine and serious “dispute” within the meaning of Article 6 § 1 of the Convention. However, the Court finds it unnecessary to examine that issue, since the applicants’ complaints are in any event inadmissible for the reasons set out below.

(a) Complaints concerning the dismissal of the action at issue

30. The Court notes that the applicants’ first complaints relate to the determination of the starting point of the time-limit set out in Article 60 § 1 of the former Code of Obligations, under which all tort claims had to be brought within one year of the damage and the identity of those responsible for that damage becoming known to the victim of the civil wrong. The applicants argued in this connection that they could not be expected to have acquired the requisite knowledge of the tortfeasor and the damage at the material time.

31. The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of procedural rules (see Tejedor García v. Spain , 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII). It also recalls that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia , García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).

32. Turning to the facts of the present case, the Court observers that the Batman Civil Court held that the applicants’ claims had become time ‑ barred. It considered in this connection that the applicants had had the requisite knowledge for bringing their claims on the date of the action concerning the property adjacent to theirs (see paragraph 12 above).

33. The Court notes first and foremost that the prior action referred to by the Batman Civil Court did not concern the property that is the subject matter of the present application but the adjacent property, and that the second and the third applicants were not even parties to those proceedings concerning the adjacent property (see paragraphs 9 and 11 above). It also notes, however, that the applicants failed to raise these pertinent arguments before the domestic instances, nor did they invoke them before the Court. Instead, the applicants limited their claims both during the domestic proceedings and before the Court to the general argument that they could not be expected to have known with certainty the identity of the wrongdoer and the damage on a prior date.

34. The Court notes in this regard that the party responsible for the incident, namely Tüpraş, was one of the two parties against whom the action concerning the adjacent property was lodged (see paragraph 9 above). It also observes that both that action, and that brought subsequently by the present applicants, concerned the effects of the same explosion on the value of the properties located in the same block. With this in mind, and having regard also to the fact that one of the applicants was party to the proceedings concerning the adjacent property, the Court considers that it fell on the applicants to explain why the date of the action concerning the adjacent property could not reasonably be taken as the starting point of the relevant time-limit, which they failed to do.

35. The Court stresses in this regard that while the co ‑ owners of the adjacent property – including the first applicant – were able to lodge their claims concerning that property in 2005, the applicants did not do so until 2007, even though the nature of the alleged damage was the same in both properties and the applicants’ claim was not based on any assessment made in the meantime. In view of the foregoing, the arguments put forth by the applicants regarding the alleged uncertainty of the wrongdoer and the damage do not as such allow the Court to call into question the conclusions of the domestic courts in the present case.

36. As regards the alleged contradiction between the decisions dismissing the applicants’ action and the case-law of the domestic courts, the Court does not find any contradiction between the decisions concerning the applicants and the other decisions cited by them.

37. Lastly, inasmuch as the applicants complained about the alleged failure of the domestic courts to apply the special time-limit provided for in Article 60 § 2 of the former Code of Obligations, the Court observes, as indicated by the Government, that the domestic courts’ conclusion in that regard was in line with the case-law of the Joint Civil Chambers of the Court of Cassation (see paragraphs 17 to 19 above). Indeed, it appears from the decision at issue that Article 60 § 2 of the former Code of Obligations was not applied in the applicants’ case, since the criminal charges brought against the Tüpraş executives did not concern the offences mentioned in Article 465 of the former Criminal Code which could exceptionally trigger the application of the longer criminal prescription period in respect of civil claims against Tüpraş (see paragraph 12 above). In the absence of any evidence to the contrary, the Court sees no reason to call into question the assessment made by the domestic courts in that regard, which does not appear to be arbitrary or unreasonable.

38. In view of the above, and having regard also to its limited role as to the interpretation and application of domestic law, the Court finds that the dismissal of the applicants’ action as time-barred cannot be considered arbitrary or manifestly unreasonable in the circumstances of the present case.

39 . 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.

(b) Other complaints under Article 6 § 1 of the Convention

40. The applicants further complained that the decisions of the Court of Cassation dismissing their appeals and rectification requests had lacked reasoning.

41. The Court recalls that insofar as appeal instances are concerned, Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision by detailed reasons ( Kabasakal and Atar v. Turkey (dec.), nos. 70084/01 and 70085/01, 1 July 2003, and Feryadi Şahin v. Turkey , no. 33279/05, § 22, 13 September 2011).

42. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

43. In their observations dated 14 October 2017, the applicants also complained that their claims should have not been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

44. The Court notes that this additional complaint concerns the proceedings which were finalised on 8 October 2009. The Court further notes that it does not constitute an elaboration on the applicants’ original complaints to the Court, but raises a new issue. Accordingly, the Court must reject it pursuant to Article 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time-limit (see, mutatis mutandis , Kurşun , cited above, § 80).

45. The applicants complained that the State authorities had failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect their property rights. They further maintained that they had not been indemnified for their damage and complained about the prohibition of construction put in place in the area at issue.

46. The applicants further maintained under Article 13 of the Convention that the criminal proceedings initiated after the incident had not been effective and, in particular, had not complied with the criteria laid down by the Court in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004 ‑ XII).

47. The Government argued, inter alia , that the applicants’ complaints under this head should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. They argued in this connection that the applicants had failed to lodge the proceedings at issue within the applicable time-limit and to bring an administrative action against the relevant State authorities.

48. The Court considers that the applicants’ complaints under this head fall to be examined under Article 1 of Protocol No. 1 to the Convention alone (see, Kurşun , cited above, § 109).

49. To the extent that the applicants complained of their inability to receive redress for their alleged damage, the Court observes that by not having complied with the relevant time ‑ limit, the applicants failed to give the domestic authorities an opportunity to examine the merits of their complaints concerning their alleged damage. Therefore, taking also into account its conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 39 above), the Court considers that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

50. As regards the applicants’ complaint that they had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings initiated after the incident, the Court recalls that it has already examined and declared inadmissible as manifestly ill-founded a similar complaint in the case of KurÅŸun (cited above, § 125). The Court sees no reason to come to a different conclusion in the present case. 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.

51. As for the applicants’ remaining complaints under this head, the Court notes, as also indicated by the Government, that the applicants have not aired them before the relevant domestic authorities or courts before lodging their application with the Court. It follows that those complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies (see, for a similar finding, Kurşun , cited above, § 132).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021.

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President

Appendix

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

Represented by

1.Mehmet Emin GÃœNEÅž

1965Turkish

Batman

M .M. Erken

Mr S. Özevin

Mr E. Erken

2.Celal GÃœNEÅž

1975Turkish

Batman

3.Orhan GÃœNEÅž

1968Turkish

Batman