SECOND SECTION

DECISION

Application no. 22625/10 Ahmet KÖLGE 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 30 March 2010,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ahmet Kölge, is a Turkish national, who was born in 1954 and lives in Batman. He was represented before the Court by Mr A. Çakan and Mr A.Ş. Deniz, lawyers practising in Batman.

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. The applicant is the owner of a property 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, that of the applicant.

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).

7 . On 8 April 2005 the 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 6,000 Turkish liras (TRY) for the depreciation of the value of his property and for his loss of rental income, 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 66,490.5 in respect of the depreciation of the value of the property, corresponding to 50 % of its estimated value;

(ii) TRY 27,426.263 in respect of the structural damage sustained by the property;

(iii) TRY 3,850 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 damage sustained by the property, as the determination of any invisible effects of the explosion on the property required further examination.

9 . On 20 December 2006, following a challenge by Tüpraş and ANT against the above report, the experts prepared an additional report. They reiterated, inter alia , that the amount of the applicant’s damage in respect of the structural damage was TRY 27,426.263.

10. On 21 December 2006 the applicant asked the court to increase his initial claims by TRY 84,937.16 in the light of the experts’ assessments.

11. On 23 February 2007 the Batman Civil Court allowed the applicant’s claims against Tüpraş in so far as they concern the depreciation of the value of his property. However, it dismissed his claims concerning a loss of rental income for lack of sufficient evidence. As for the alleged structural damage, the court noted in particular that the applicant had not made any claims under that head in his initial petition.

12. On 18 March 2008 the Court of Cassation quashed that judgment.

13. No information has been provided by the parties concerning subsequent developments in the first set of proceedings.

14. On 29 March 2007 the applicant brought an additional action before the Batman Civil Court against Tüpraş. Relying on the reports of 8 June and 20 December 2006 (see paragraphs 8 and 9 above), he requested TRY 27,426 (approximately 14,675 euros at the material time) for the structural damage sustained by his property. He stated in his petition 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).

15 . On 16 May 2008 the Batman Civil Court rejected the action as time ‑ barred. It held that the applicant’s 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. Bearing in mind that the applicant had already brought an action for compensation in relation to the explosion in question, the court considered that he had become aware of the party responsible for his damage on the date of the first action at the latest (see paragraph 7 above). It thus held that the additional action had not been brought within the one-year time-limit.

16. On 11 May 2009 the Court of Cassation upheld the judgment of the first ‑ instance court and on 19 November 2009 it dismissed the applicant’s rectification request.

17. 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.

THE LAW

18. The Court observes that in his application form, the applicant 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.

19. In these circumstances, the Court considers that although the first set of proceedings is relevant by way of background information, they fall outside of the scope of the present application.

20. The applicant complained that he had been denied a fair trial on account of the dismissal of his additional action 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. He 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.

(a) The parties’ submissions

21. The applicant 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.

22 . The applicant 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. He 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. He 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 invisible structural damage at the property. He thus maintained that he was not aware of such damage when he lodged his first action.

23. The applicant further argued that his claims should not have been considered to have become time-barred by reason of the “continuing” nature of the damage at issue. He 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 his property.

24 . 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 applicant’s complaint in this regard was of a fourth-instance nature.

25. The Government argued that the fact that the tortfeasor had been identifiable would have been sufficient to bring an action. As for the second criterion concerning the knowledge of the damage, the Government maintained that being aware of the scope of the damage and all details concerning the calculation of the compensation was not required to trigger the relevant time-limit; it was sufficient to be aware of the existence, the nature and the main elements of the damage. They also added that the accident at issue was not an incident of a continuous nature. According to the Government, it would have been against the ordinary course of life for the applicant not to be aware of the structural damage sustained by his property by the date on which he had brought the first action for compensation.

26. The Government also stressed that the structural damage at issue could have been objectively established as of the date of the explosion.

(b) The Court’s assessment

27. The Court deems it appropriate to examine the applicant’s 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).

28. 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 applicant argued in this connection that he could not be expected to have acquired the requisite knowledge of the tortfeasor and the damage on the date of the first action brought by him. He further claimed that there had been a “continuing” damage in the present case.

29. 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 case, the domestic courts applied the relevant one-year time-limit in a foreseeable and reasonable manner, without constituting a bar to the applicant’s effective access to court (see KurÅŸun, cited above, § 95).

30. Turning to the facts of the present case, the Court observes that the domestic courts held in the second set of proceedings that the applicant’s claims in respect of the alleged structural damage had become time ‑ barred. They considered in this connection that the applicant had had the requisite knowledge on the date of the first action at the latest (see paragraph 15 above).

31. As regards the applicant’s 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 applicant had lodged the first action (see paragraph 7 above). Therefore, as the applicant had availed himself of the opportunity to lodge a compensation claim against Tüpraş on 8 April 2005, the domestic courts’ conclusion that the applicant 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 case (see, a contrario , Kurşun , cited above, § 101).

32. As for the allegation that the property at issue had sustained invisible damage which was not known to the applicant, 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 applicant was not aware of the structural damage sustained by his property.

33. 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 applicant did not demonstrate the existence of such continuing damage. He simply contended that the oil leak in the area had not stopped. However, the applicant’s claim in the additional action did not relate to the damage resulting directly from the allegedly continuing oil leak, but to the structural damage sustained by his property as a result of the explosion, which was not an incident of a continuous nature. Thus, the applicant’s allegation that the oil leak in the area had not stopped is not relevant to the present complaints.

34. 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 applicant’s additional action as time-barred cannot be considered as unforeseeable or unreasonable in the circumstances of the present case.

35 . 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.

36. The applicant 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. The applicant referred in this connection to two first-instance decisions delivered in respect of other property owners in the area.

37. The Court observes that the first-instance decision at issue was duly reasoned (see paragraph 15 above). As for the alleged lack of reasoning in the decision 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).

38. 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 applicant were not final.

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.

40. The applicant complained that the State authorities had failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect his property rights, which were violated on account of the damages that his property had sustained following the explosion of 3 May 2004. He further complained that although his damage had been clearly established by the court-appointed experts, the action for compensation brought by him was dismissed as time-barred. He also maintained that he had been prevented from making use of his property as he wished on account of the prohibition of construction put in place in the area where his property was located.

41. The applicant 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).

42. The Government argued, inter alia , that the applicant’s 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 proceedings at issue were dismissed as time-barred, which prevented the domestic courts from determining the merits of the applicant’s complaints.

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

44. As regards the applicant’s complaint that he 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.

45. As for the remaining complaints of the applicant under this head, the Court observes that the only domestic remedy used by the applicant was the civil proceedings at issue. However, as also indicated by the Government, the applicant failed to give the domestic authorities an opportunity to examine the merits of his complaints in those proceedings by not having complied with the relevant time ‑ limit.

46. Therefore, this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

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