SECOND SECTION

DECISION

Applications nos. 22685/10 and 40711/10 Abdulaziz İPEK against Turkey and Zeki ÇELİK 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 30 March 2010 and 17 May 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 list of the applicants and their representatives is set out in the appended table.

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 3 May 2005 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”). He requested a total of 5,100 Turkish liras (TRY) for the depreciation of the value of his property and for his loss of commercial profit following the explosion, reserving his right to increase his claims.

8 . In a report dated 8 June 2006, the experts appointed by the Batman Civil Court estimated the applicant’s damage as follows:

(i) TRY 70,932 in respect of the depreciation of the value of the property, corresponding to 50 % of its estimated value;

(ii) TRY 12,436 in respect of the structural damage sustained by the property;

(iii) TRY 3,600 in respect of the loss of rental income.

In the same report, the experts stated in particular that they had only been able to determine the visible structural damage sustained by the property, as the determination of any invisible effects of the explosion on the property required further examination.

9 . On 6 November 2006, following a challenge brought by Tüpraş and ANT against the above report, the experts prepared an additional report. They indicated, inter alia , that the amount of the applicant’s damage in respect of the structural damage was TRY 11,172.84.

10. On 21 December 2006 the applicant asked the court to increase his initial claims by TRY 74,288.04 in the light of the experts’ assessments.

11 . On 12 October 2009 the Batman Civil Court allowed in part the applicant’s claims against TüpraÅŸ. It held that the applicant’s request to increase his initial claims had become time ‑ barred and therefore dismissed that part of his claims. Furthermore, relying on a fresh expert report of 18 May 2009, it found that the value of the applicant’s property had diminished by 30 %. However, considering itself bound by the applicant’s initial claim, it awarded him TRY 5,100 under that head.

12. On 1 March 2011 the Court of Cassation upheld that judgment.

(b) The proceedings concerning the second applicant

13 . On 3 May 2005 the second applicant brought an action for compensation against both Tüpraş and ANT before the Batman Civil Court. He requested a total of TRY 40,000 for the depreciation of the value of his property and for his loss of rental income, reserving his right to increase his claims.

14. On 12 October 2009 the Batman Civil Court allowed in part the applicant’s claims against Tüpraş. Relying on an expert report that it had ordered, the court awarded the applicant a total amount of TRY 38,120.46 for the depreciation of the value of his property and for his loss of rental income.

15. No information has been provided by the parties concerning subsequent developments in the first set of proceedings brought by the second applicant.

16. Meanwhile, on 29 March and 2 October 2007, the applicants brought additional actions before the Batman Civil Court against Tüpraş, seeking compensation for the alleged structural damage sustained by their properties. Relying on the reports of 8 June and 6 November 2006 (see paragraphs 8 and 9 above), the first applicant requested TRY 11,172 (approximately 5,980 euros (EUR) at the material time). The second applicant requested TRY 7,000 (approximately EUR 4,070 at the material time), without basing his claims on any expert reports or other assessment.

17 . By two decisions of 16 May 2008, the Batman Civil Court rejected the actions as time ‑ barred. It held 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. Bearing in mind that the applicants had already brought actions for compensation in relation to the explosion in question, the court considered that they had acquired the requisite knowledge on the date of the first actions at the latest (see paragraphs 7 and 13 above). It thus held that the additional actions had not been brought within the one-year time-limit. It further stated that the longer prescription period envisaged under Article 60 § 2 of the former Code of Obligations could not apply to the claims at issue (see paragraph 21 below).

18. On 28 April and 7 May 2009 the Court of Cassation upheld the judgments of the first-instance court.

19. On 8 October and 19 November 2009 it dismissed the applicants’ rectification requests.

20. 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.

21 . 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.

THE LAW

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

23 . The Court observes that in their application forms, the applicants did not submit any complaints with regard to the first set of proceedings, which were still pending at the material time, and complained only about the decisions rendered in the second set of proceedings.

24 . In these circumstances, the Court considers that although the first set of proceedings brought by the applicants are relevant by way of background information, they fall outside of the scope of the present applications.

25. 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, which had been based on an inaccurate interpretation of Article 60 § 1 of the former Code of Obligations, as well as an erroneous assessment of the facts. They further maintained that the domestic courts’ decisions rendered in the second set of proceedings had lacked reasoning and had contradicted decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion.

26. In their observations dated 12 October 2017, the applicants also 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.

(a) The parties’ submissions

27. 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.

28 . The applicants contended that the mere act of bringing an action could not trigger the time-limit at issue, as it did not necessarily prove that the claimant knew the identity of the wrongdoer with certainty on that date. They argued in this connection that the one-year time ‑ limit in question would not start running until the wrongdoer was determined with certainty, and that mere suspicions as to responsibility were not enough to set off the time ‑ limit. The first applicant further claimed that he could not be expected to have known, at the outset of the proceedings, the nature and the amount of the damage he had suffered, which required an expert examination. He argued in this connection that the expert reports prepared in the first set of proceedings established that there had been visible and invisible structural damage at his property. He thus maintained that he was not aware of such damage when he lodged his first action.

29. The applicants further argued that their claims should not have been considered to have become time-barred by reason of the “continuing” nature of the damage at issue. They claimed in this connection that there were numerous expert reports indicating that the oil leak in the area had not stopped, which meant that there was still ongoing damage to their properties.

30 . 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’ complaints in this regard were of a fourth-instance nature.

31. 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.

32. 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. As for the first applicant’s arguments regarding the alleged invisible damage, the Government maintained that the expert reports had not mentioned such damage.

33. The Government further argued that the cause of the damage sustained, namely the explosion, was not an incident of a continuous nature.

(b) The Court’s assessment

34. 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).

35. The Court notes that the present 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 on the date of the first actions brought by them. They further claimed that there had been a “continuing” damage in the present cases.

36. 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). Consequently, the Court’s task is essentially to determine whether, in the present cases, the domestic courts applied the relevant one-year time-limit in a foreseeable and reasonable manner, without constituting a bar to the applicants’ effective access to court (see KurÅŸun, cited above, § 95).

37. Turning to the facts of the present cases, the Court observes that the domestic courts held in the second set of proceedings that the applicants’ claims in respect of the alleged structural damage had become time ‑ barred. They considered in this connection that the applicants had had the requisite knowledge on the date of the first actions at the latest (see paragraph 17 above).

38. As regards the applicants’ arguments concerning the lack of sufficient knowledge of the identity of the wrongdoer, the Court observes that the party responsible for the incident, namely Tüpraş, was one of the two parties against whom the applicants had lodged the first actions (see paragraphs 7 and 13 above). Therefore, as the applicants had availed themselves of the opportunity to lodge a compensation claim against Tüpraş on 3 May 2005, the domestic courts’ conclusion that the applicants had become aware of the party responsible on that date at the latest does not appear to be unreasonable in the circumstances of the present cases (see, a contrario , Kurşun , cited above, § 101).

39. With regard to the first applicant’s allegation that his property had sustained invisible damage which was not known to him, the Court notes that while the first expert report of 8 June 2006 did not exclude the possibility of invisible damage, that report expressly mentioned that the experts’ assessment was based on the visible damage sustained by the property (see paragraph 8 above). Therefore, the applicant was, or at least should have been, aware of such visible structural damage at the time of the first action for compensation at the latest. Yet the applicant failed to request compensation under that head in the first action he had lodged before the Batman Civil Court, nor did he provide any relevant explanation as to why he could not have been expected to make that claim at the material time. Instead, he lodged an additional action for that damage almost two years after the date of the first action, despite relying on the conclusions of the experts as to the visible structural damage. Therefore, the Court cannot see how the possible existence of invisible damage could demonstrate that the first applicant was not aware of the structural damage sustained by his property.

40. As for the second applicant, the Court notes that he failed to provide any relevant explanation as to why he did not submit his claims in respect of the alleged structural damage in the first action but in the additional action that he lodged more than two years later. An explanation by the second applicant in this regard was all the more necessary bearing in mind that his claims made in the second action were not based on any assessment made during the first action.

41. Lastly, as to the alleged “continuing” nature of the damage, the Court notes that the structural damage, which was the subject of the second set of proceedings, was not per se of a continuing nature. The Court further notes that the applicants did not demonstrate the existence of such continuing damage. They simply contended that the oil leak in the area had not stopped. However, the applicants’ claims in the additional actions did not relate to the damage resulting directly from the allegedly continuing oil leak, but to the structural damage sustained by their property as a result of the explosion, which was not an incident of a continuous nature. Thus, the applicants’ allegation that the oil leak in the area had not stopped is not relevant to the present complaints.

42. In view of the above and having regard also to its limited role as to the interpretation and application of domestic law, the Court considers that the dismissal of the applicants’ additional actions as time-barred cannot be considered as unforeseeable or unreasonable in the circumstances of the present cases.

43 . 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.

44. The applicants complained that the domestic court decisions at issue had lacked reasoning and had contradicted decisions delivered in respect of others who had sustained damage to their properties as a result of the same explosion. They referred in this connection to two first-instance decisions delivered in respect of other property owners in the area.

45. The Court observes that the first-instance decisions at issue were duly reasoned (see paragraph 17 above). As for the alleged lack of reasoning in the decisions of the Court of Cassation, 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).

46. As to the alleged contradiction between the decisions at issue and other decisions concerning the same incident, the Court observes that the two decisions referred to by the applicants were not final.

47. 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.

48. In their observations dated 12 October 2017, the applicants also submitted a new complaint regarding 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 compensation proceedings.

49. The Court notes that this additional complaint concerns the proceedings which were finalised on 8 October and 19 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, Kurşun , cited above, § 80).

50 . 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, which were violated on account of the damages that their properties had sustained following the explosion of 3 May 2004. They further complained that the additional actions for compensation brought by them had been dismissed as time-barred. They also maintained that they had been prevented from making use of their properties as they wished on account of the prohibition of construction put in place in the area where their properties were located.

51. 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).

52. 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.

53. 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).

54. To the extent that the applicants complained of their inability to receive redress for the alleged damage sustained by their properties, the Court observes that, having regard to the manner in which the applicants framed their complaint (see paragraph 50 above) and to the considerations set out in paragraphs 23 and 24 above, that complaint relates to the damage which was the subject of the second set of proceedings. The Court notes in this connection 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 complaint concerning the damage at issue. Therefore, taking also into account its conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 43 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.

55. 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.

56. 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

APPENDIX

No.

Application no.

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

22685/10

Abdulaziz Ä°PEK 1956 Batman Turkish

A. Çakan A.Ş. Deniz

2.

40711/10

Zeki ÇELİK 1947 Batman Turkish

M.C. İlge S. Özel