SECOND SECTION

DECISION

Applications nos. 16433/10 and 16447/10 Zeki ÇİÇEK against Turkey and Hüseyin KARA 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 applications lodged on 8 March 2010 and 2 March 2010 respectively,

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. The applicant in the first case, Mr Zeki Çiçek, was born in 1962. The applicant in the second case, Mr Hüseyin Kara, was born in 1965. Both applicants are Turkish nationals and live in Batman. They were represented before the Court by Mr M.M. Erken, Mr S. Özevin and Mr E. Erken, lawyers practising in Batman.

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

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

4. The applicants were the owners of two separate properties in the Toptancılar Sitesi area of Batman, which is located in close proximity to the Tüpraş Batman Oil Refinery (“Tüpraş Refinery” or “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”).

5. On 3 May 2004 a large underground explosion took place in Toptancılar Sitesi, which resulted in three deaths and many injuries. The explosion and ensuing fire also damaged many properties in the vicinity, including, allegedly, those of the applicants.

6. 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).

(a) The proceedings concerning the first applicant

7 . On 7 May 2004 the company using the property of the first applicant brought a declaratory action to establish, inter alia, the structural damage sustained by the property as a result of the explosion. In a report of 24 May 2004, the structural damage was assessed at 64,367.784 Turkish liras (TRY).

8 . On 6 October 2004 the first applicant brought an action for compensation against Tüpraş and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court” or “the Civil Court”). He indicated that the structural damage sustained by his property had been partially compensated by his own insurer in the amount of TRY 58,500. He thus requested TRY 5,867, corresponding to the total amount of the structural damage as calculated by the report of 24 May 2004 (see paragraph 7 above) minus the amount paid by his insurer. He also reserved his right to further compensation for the depreciation of the value of his property and for other “similar” damages.

9. On 21 February 2007 the Batman Civil Court allowed the applicant’s claims against Tüpraş. Relying on the report of 24 May 2004, it awarded the applicant the full amount he had requested.

10. On 24 March 2008 the Court of Cassation quashed that judgment, holding in particular that the aforementioned expert report had not been adequate.

11. The case was thus remitted to the Batman Civil Court, which subsequently ordered a fresh expert report to determine the extent of the applicant’s damage.

12. In a report of 16 March 2009, the applicant’s damage in respect of the structural damage was calculated at TRY 57,409.75.

13 . On 22 May 2009 the Batman Civil Court dismissed the applicant’s claims. Relying on the report of 16 March 2009 and the applicant’s statement as to the amount paid by his insurer (see paragraph 8 above), the court held that the structural damage sustained by the applicant’s property had been fully compensated by his insurer.

14. On 26 October 2009 the Court of Cassation upheld that judgment.

(b) The proceedings concerning the second applicant

15 . On 7 May 2004 the second applicant brought a declaratory action for an assessment of the damage sustained by his property and the goods therein as a result of the explosion and ensuing fire. In two reports dated 24 May and 11 June 2004, the structural damage was assessed at TRY 70,093.44 and the damage to the goods was determined as TRY 177,246.

16 . On 9 September 2004 the second applicant brought an action for compensation against Tüpraş and ANT before the Batman Civil Court. Relying on the aforementioned expert reports prepared for the purposes of the declaratory action (see paragraph 15 above), the applicant requested a total amount of TRY 247,339 for the damage he had suffered as a result of the explosion. He also reserved his right to increase his claims.

17. On 23 February 2007 the Batman Civil Court allowed the applicant’s claims against Tüpraş. Relying on the aforementioned reports, it awarded the applicant the full amount he had claimed.

18. On 11 December 2007 the Court of Cassation quashed that judgment, holding in particular that a fresh expert assessment was required.

19. The case was thus remitted to the Batman Civil Court, which subsequently ordered fresh expert reports to determine the extent of the applicant’s damage.

20 . On 13 February 2009 the Batman Civil Court allowed in part the applicant’s claims against Tüpraş. Relying on the fresh expert reports, it awarded the applicant a total amount of TRY 214,496.49 in respect of the damage sustained by the property as well as the goods and the equipment therein.

21. On 13 October 2009 the Court of Cassation upheld that judgment, and on 16 June 2010 it dismissed the rectification request made by Tüpraş.

22. Meanwhile, on 1 February and 13 March 2007 respectively, the applicants brought additional actions before the Batman Civil Court against Tüpraş. They each requested TRY 65,000 for the depreciation of the value of their respective properties and TRY 10,000 for their loss of rental income from the date of the explosion. The applicants claimed that following the incident, Toptancılar Sitesi had been evacuated, which had significantly reduced the value of their properties and had caused a loss of rental income.

23 . On 16 May 2008 the Batman 1 st and 2 nd Civil Courts rejected the applicants’ actions as time ‑ barred.

The courts noted that the applicants’ claims 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. They held that the applicable time ‑ limit had started running on the date of the explosion, namely on 3 May 2004, and had expired by the time that the applicants had brought their claims. They further held that although criminal charges had 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 28 to 30 below).

As for the first applicant, the 2 nd Civil Court noted in particular that the property at issue was located in close proximity to the Tüpraş Refinery, which was the only refinery in Batman. The court considered that it had appeared from the documents annexed to the applicant’s petition that he had learned of the explosion and the damage on the date of the incident. It further noted that it was apparent from proceedings brought by other property owners and from media sources that Tüpraş could be the party responsible for the incident.

As to the second applicant, the 1 st Civil Court held in particular that the explosion had taken place on 3 May 2004 and that, soon after that date, some of the property owners in Toptancılar Sitesi had brought compensation claims against Tüpraş. Since the applicant was also a property owner in Toptancılar Sitesi, he should have formed an opinion regarding the responsibility of Tüpraş for the explosion on the date of its occurrence.

24 . The applicants appealed against those judgments. They argued that the relevant time-limit would only start running when both the damage and the identity of the tortfeasor became known to the victim. According to them, exact knowledge of tortfeasor was required and they had acquired such knowledge upon the finalisation of case no. 2004/966 E. on 30 January 2007 (for further details concerning that judgment, see Kurşun , cited above, §§ 42-45).

The applicants further argued that the first-instance judgments had contradicted previous decisions delivered with regard to other victims of the same explosion. They relied in this regard on a decision where a request to increase a compensation claim was upheld by the Court of Cassation, on the ground that the request had been made within a year from the lodging of the original compensation claim, and that there was no evidence in the case file demonstrating that knowledge of the damage and of the tortfeasor’s identity had been acquired prior to the lodging of the original claim.

The applicants also maintained that the special time-limit provided for in Article 60 § 2 of the former Code of Obligations should have been applied to the proceedings at issue.

25. On 28 April and 26 May 2009 the Court of Cassation dismissed the applicants’ appeals.

26. On 16 September and 12 November 2009 it also dismissed the applicants’ rectification requests.

27. 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.

28 . 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.

29. 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.

30 . 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

31. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

32. The applicants complained that they had been denied a fair trial on account of the dismissal of their additional actions 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.

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

34 . In their observations dated 13 October 2017, the applicants also complained that their claims should not have been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

35. 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.

36 . The applicants argued that they could not be expected to have known with certainty the identity of the wrongdoer and the amount of the alleged damage at the material time. They further reiterated their arguments raised on appeal (see paragraph 24 above). The applicants added that they had not initially made the claims at issue in order to avoid paying higher court fees and the legal fees of the opposing party in the event of the dismissal of their claims. They also submitted two examples of cases concerning the same incident in which the claimants – who had lodged their claims in January and April 2005 – were awarded compensation in respect of the depreciation of the value of their properties and their loss of rental income.

37 . 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. The Government also stressed that the applicants had lodged their first actions within the prescribed time-limit but that they had failed to bring their additional actions within that period. The Government further submitted examples from the case-law of the Court of Cassation concerning the interpretation of the relevant time-limit rule. In one of those examples, the Joint Civil Chambers of the Court of Cassation found that the requisite knowledge of the damage would be considered to have been acquired when victims learned of the existence, nature and essential elements of the damage enabling them to objectively substantiate their claims in a legal action (judgement dated 12 July 2006, E. 2006/4-518, K. 2006/526).

38. 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 30 above).

(a) Complaints concerning the dismissal of the additional actions

39. The Court deems it appropriate to examine the applicants’ complaints from the perspective of the right of access to a court, as guaranteed by Article 6 § 1 of the Convention (see Kurşun, cited above, § 93). It refers in this connection to the recapitulation of it case-law concerning access to court in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).

40. The Court notes that the applicants’ first complaint relates 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 becoming known to the victim. The applicants argued in this connection that they could not be expected to have acquired the requisite knowledge of the tortfeasor and the amount of the alleged damage requested within the context of their additional action within the time-limit indicated by the domestic courts.

41. The Court reiterates 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 is not the Court’s 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).

42. Turning to the facts of the present case, the Court observes that the Batman Civil Court held that the applicants’ claims had become time ‑ barred. They considered in this connection that the applicants had had the requisite knowledge for bringing their additional claims on the date of the explosion (see paragraph 23 above).

43. The Court recalls that in the case of Kurşun (cited above, § 101), which concerned the same incident, it held that expecting the applicant to have acquired the requisite knowledge of the tortfeasor on the very date of the explosion appeared to have imposed a disproportionate burden on him in the circumstances of that case.

44. The Court considers, however, that the instant cases differ from Kurşun (cited above), in that the applicants here did bring an action, albeit concerning a different type of damage, within one year from the incident and that those initial claims were subject to an examination on the merits by the Batman Civil Court (see paragraphs 13 and 20 above). Therefore, the present applicants were able to access the civil courts in respect of their original compensation claims, and it was only their additional claims that were dismissed as time-barred. In these circumstances, the question arising in the present cases is whether the dismissal of the applicants’ additional compensation claims impaired the very essence of their right of access to a court or imposed a disproportionate burden on them despite the fact that they successfully lodged the first set of compensation proceedings.

45. The applicants mainly claimed in this regard that they could not have brought the additional actions earlier because of their lack of sufficient knowledge of the identity of the wrongdoer. The Court notes, however, that the party responsible for the incident, namely Tüpraş, was one of the two parties against whom the applicants had lodged their first actions for compensation (see paragraphs 8 and 16 above). Therefore, as the applicants had successfully availed themselves of the opportunity to lodge a compensation claim against Tüpraş within the relevant time-limit as interpreted by the domestic courts, the arguments regarding their inability to raise their additional claims due to lack of certainty of the wrongdoer’s identity does not appear convincing in the absence of further supporting arguments, which are lacking in the present cases.

46. The Court observes that the applicants argued before it, in a very general manner, that they could not have known with certainty the amount of the damage requested in the additional actions within the one-year time-limit applied by the Batman Civil Court. They never claimed, however, that they were unaware of the existence of such damage at the material time. Indeed, the Court notes that in his initial action for compensation, the first applicant had in fact expressly referred to the depreciation of the value of his property and to other “similar” damages (see paragraph 8 above). Furthermore, it appears from a Court of Cassation judgment submitted by the Government that the requisite knowledge of the damage would be considered to have been acquired when victims learned of the existence, nature and essential elements of the damage enabling them to objectively substantiate their claims in a legal action (see paragraph 37 above). The Court therefore notes in the light of that case ‑ law, which was not contested by the applicants, that the knowledge of the amount of the damage was not a prerequisite for triggering the relevant time-limit as the applicants appear to allege.

47. The Court further observes that the applicants’ arguments before the domestic courts have similarly focused exclusively on the lack of sufficient knowledge of the identity of the wrongdoer, without any explanation as to why they could not have known the alleged depreciation in value of their properties or their loss of rental income at the material time (see paragraph 24 above).

48. In these circumstances, the dismissal of the applicants’ additional actions – which were brought more than two years after their first actions without any apparent reasons that would justify such delay – may not as such considered to be unreasonable.

49. As for the alleged contradiction between the judgments concerning the applicants and the decision of the Court of Cassation cited by them on appeal (see paragraph 24 above), the Court notes that in the latter case, the request for the increase was made within a year from the lodging of the original compensation claim, unlike in the cases of the applicants. Admittedly, the reasoning of the Court of Cassation in that decision suggests that in the absence of any evidence to the contrary, the date of the lodging of the original claims – as opposed to the date of the explosion – should be taken as the starting point of the relevant time ‑ limit in respect of an eventual request for further compensation. However, even such flexible interpretation of the relevant time-limit would have had no effect on the present cases, since the applicants’ additional claims were lodged more than two years after their initial actions and would thus be considered to have become time-barred in any event.

50. As to the two other cases cited by the applicants, the compensation claims in those cases were lodged less than a year from the date of the explosion (see paragraph 36 above). Therefore, it appears that no issue arose in those cases as regards compliance with the relevant time ‑ limit, unlike in the present cases.

51. 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 in the additional compensation proceedings, 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 28 to 30 above). Indeed, it appears from the decisions at issue that Article 60 § 2 of the former Code of Obligations was not applied in the applicants’ cases, 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 23 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.

52. In view of the above, and having regard notably to the fact that the applicants had access to the civil courts in respect of their original compensation claims, the Court considers that the applicants failed to demonstrate that the dismissal of their additional actions as time-barred had impaired the very essence of their right of access to a court or had imposed a disproportionate burden on them in the circumstances of the present cases.

53 . It follows that this part of the applications 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

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

55. 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).

56. 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.

57. In their observations dated 13 October 2017, the applicants also complained that their claims should not have been considered to have become time-barred by reason of the “continuing” nature of the damage at issue.

58. The Court notes that this additional complaint concerns the proceedings which were finalised on 16 September and 12 November 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).

59. 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 alleged damage. They also complained about the prohibition of construction put in place in the area at issue.

60. 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).

61. 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 compensation proceedings at issue within the applicable time-limit and to bring an administrative action against the relevant State authorities.

62. 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).

63. 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 the damage at issue. Therefore, taking also into account its conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 53 above), the Court considers that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

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

65. 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 applications 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,

Decides to join the applications;

Declares the applications inadmissible.

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

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President