SECOND SECTION

DECISION

Application no. 19499/10 Åžerife AÅžKIN and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 16 June 2020 as a Committee composed of:

Valeriu Griţco , President, Arnfinn Bårdsen , Peeter Roosma, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 9 February 2010,

Having deliberated, decides as follows:

THE FACTS

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

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

3 . On 4 September 2001 the third applicant, who was 13 years old at the time, was electrocuted when a metal pipe that he was carrying while he was grazing his animals came in contact with an overhead high ‑ voltage power line owned by the Dicle Electricity Distribution Company (“ DEDAŞ”, Dicle Elektrik Dağıtım Anonim Åžirketi ). He sustained serious burns all over his body and, after extensive treatment, both his arms were amputated from the elbow down.

4 . Criminal proceedings were brought against the director of the Ä°dil branch of the Turkish Electricity Distribution Company before the Ä°dil Criminal Court of First Instance for causing bodily harm through negligence. On 28 May 2003 the Ä°dil Criminal Court of First Instance acquitted the defendant. Relying on an expert report, it held that the victim, that is to say the third applicant, had been 100 % responsible for the accident. On14 February 2005 the Court of Cassation upheld the judgment.

5 . On 28 November 2001 the applicants brought compensation proceedings against DEDAŞ and the Turkish Electricity Transmission Company (“TEİAŞ”, Türkiye Elektrik İletim Anonim Şirketi ) before the İdil Civil Court of First Instance for the pecuniary and non-pecuniary damage that they had allegedly sustained as a result of the electrocution of the third applicant.

6 . At a hearing held on an unspecified date, the İdil Civil Court of First Instance held that, pursuant to Article 53 of the Code of Obligations in force at the material time, civil courts were not bound by the findings or the verdict of a criminal court on the issue of a defendant ’ s guilt. During the trial, the court commissioned several expert reports to determine the responsibility of the defendant companies for the accident.

7 . In the fifth expert report, dated 9 January 2007, the experts noted the following findings: ( i ) the place of the incident was not a pedestrian ‑ only zone and could also be used by motor vehicles; (ii) given the potential use of the road by cars, the power line should have been installed at least six metres above ground level as specified and required by Article 44 of the Regulation; (iii) the height of the power line in question had been measured as five metres and ten centimetres, and four metres and eighty centimetres on 14 October 2001 and 24 October 2003, respectively; (iv) since the accident had taken place on 4 September 2001, when temperatures were higher than in October, it was highly possible that the power lines had been hanging lower at the relevant time due to expansion from the heat; (v) the accident had occurred exactly midway between two transmission towers, suggesting that the power line had probably been hanging lower than four hundred and eighty or five hundred and ten centimetres; (vi) in the light of all these findings, it was evident that the power line at issue had not been compliant with the six ‑ metre height requirement set out in Article 44 of the Regulation; (vii) there had been no warning signs in the vicinity of the power line indicating danger of death by electrocution. Consequently, although the experts acknowledged that the third applicant had been electrocuted as a result of his own conduct, the main responsibility for the accident (70%) lay with the defendant company DEDAÅž, which had failed to comply with the obligations set out under the Regulation. The applicants accepted the findings of the last expert report, but the defendant company objected to them.

8 . On 27 December 2007 the Ä°dil Civil Court of First Instance dismissed the case against TEÄ°AÅž due to the absence of any involvement on its part in maintaining and repairing the power line in question. However, it partially accepted the applicants ’ claims against DEDAÅž, as the latter had caused the third applicant ’ s injury and permanent disability by failing to demonstrate the level of care and attention demanded by the dangerous nature of its activities. Accordingly, it awarded ( i ) TRY 285,925.13 in respect of pecuniary damage and TRY 10,000 in respect of non-pecuniary damage to the third applicant, plus interest, (ii) TRY 2,040 in respect of pecuniary damage and TRY 5,000 in respect of non-pecuniary damage to the second applicant (the third applicant ’ s father), plus interest, and (iii) TRY 5,000 in respect of non ‑ pecuniary damage to the first applicant (the third applicant ’ s mother), plus interest. It rejected the third applicant ’ s siblings ’ requests for compensation in respect of non-pecuniary damage.

9 . Both the applicants and DEDAÅž appealed against the judgment of the first-instance court. Both parties requested a public hearing before the Court of Cassation. The applicants objected in particular to the first instance court ’ s ruling on the compensation awarded in respect of non ‑ pecuniary damage, deeming the amounts inadequate in relation to the damage they had allegedly suffered.

10 . A public hearing was accordingly held before the Court of Cassation on 31 March 2009, following which the appeal court delivered its decision. It rejected the parties ’ appeal requests, with the following reservations: ( i ) the third applicant ’ s siblings should have been granted some compensation in respect of non ‑ pecuniary damage in view of the distress and anguish they must have suffered in the aftermath of the accident and the amputation of their brother ’ s arms, (ii) the award of TRY 2,040 to the third applicant ’ s father by way of treatment costs would result in a double payment by DEDAÅž , since the costs in question had already been included when calculating the pecuniary damage award made to the third applicant, and (iii) the costs for the care of the third applicant had been over-estimated.

11 . On 8 October 2009 the Ä°dil Civil Court of First Instance delivered a new judgment in accordance with the decision of the Court of Cassation. Accordingly, it awarded ( i ) the third applicant TRY 207,916.76 in respect of pecuniary damage and TRY 10,000 in respect of non-pecuniary damage, plus interest; (ii) the first and second applicants TRY 5,000 each in respect of non-pecuniary damage, plus interest; and (iii) TRY 1,000 to each of the remaining applicants as non ‑ pecuniary damage, plus interest.

12 . The judgment, against which neither of the parties appealed, became final on 2 December 2009.

13 . On 13 April 2010 DEDAÅž paid the applicants TRY 802,134.64 (approximately 396,318 euros (EUR) at the material time).

14 . On 29 April 2010 they paid another TRY 82,935.34, and thus settled the judgment debt (approximately EUR 41,844 at the material time).

COMPLAINTS

15 . The applicants complained under Articles 6 § 1 and 8 of the Convention about the excessive length of the proceedings before the İdil Civil Court of First Instance. The first, second and third applicants further complained under the same provision that the compensation in respect of non-pecuniary damage awarded by that court was inadequate.

16 . The applicants claimed under Article 6 § 3 that their submissions before the İdil Civil Court of First Instance had not been taken into consideration.

17 . They lastly complained under Article 2 of Protocol No. 1 to the Convention that the third applicant had not been able to continue his education as he had been rendered disabled following the accident.

THE LAW

18 . The applicants complained that the length of the compensation proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

19 . The Court recalls that, pursuant to Law no. 6384, a compensation commission had been established to examine applications concerning the alleged excessive length of proceedings and non-execution of domestic court decisions.

20 . The Court observes that a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013), the Court declared an application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

21 . In the light of the foregoing, the Court therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

22 . Relying on Article 8 of the Convention, the applicants complained mainly about the delay in the proceedings before the domestic courts and the insufficiency of the compensation amounts.

23 . The Court has already established that Article 8 may give rise to positive obligations inherent in effective “respect” for private and family life, including the obligation for a State to take appropriate steps to safeguard the physical and psychological integrity of those within its jurisdiction as necessary (see, mutatis mutandis , Trocellier v. France ( dec. ), no. 75725/01, ECHR 2006-XIV, and Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016). For the most part, the positive obligations that arise under Article 8 in the context of a person ’ s physical and psychological integrity correspond with those under Article 2 of the Convention, and require the national authorities to take the same types of practical measures as those expected of them under that provision (see, mutatis mutandis , Kolyadenko and Others v. Russia , nos. 17423/05 and 5 others, § 216, 28 February 2012, and Brincat and Others v. Malta , nos. 60908/11 and 4 others, §§ 85 and 102, 24 July 2014 ).

24 . Accordingly, where a person ’ s right to physical or psychological integrity has been infringed, the obligation under Article 8 − as in the case of the parallel positive obligation under Article 2 − requires the State to have in place an effective independent judicial system ensuring the availability of legal means capable of promptly establishing the facts and providing appropriate redress to the victim (see, mutatis mutandis , Trocellier , cited above; Benderskiy v. Ukraine , no. 22750/02, §§ 61-62, 15 November 2007; Yardımcı v. Turkey , no. 25266/05, §§ 56-57, 5 January 2010; S.B. v. Romania , no. 24453/04, § 66, 23 September 2014; and Vasileva , cited above, § 63). The Court reiterates in that regard that where an injury is the result of negligence, this obligation may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004 ‑ XII).

25 . The Court observes at the outset that the applicants do not challenge the İdil Civil Court of First Instance ’ s capability of establishing the facts and the responsibility in respect of the accident.

26 . The Court further reiterates that the amount of compensation afforded to an applicant for damage caused is an important indicator for assessing whether the domestic judicial authorities have provided an effective response to the alleged violation of a Convention right (see, mutatis mutandis , Kotelnikov v. Russia , no. 45104/05, § 109, 12 July 2016). As there is no standard by which pain and suffering, physical discomfort and mental distress and anguish can be measured in terms of money, the Court is mindful that the task of making an estimate of damages to be awarded is a difficult one (see Shilbergs v. Russia , no. 20075/03, § 76, 17 December 2009). The Court therefore assesses the reasonableness of the amount awarded in the light of all the circumstances of the case, also taking into account awards it has made in similar cases in the past.

27 . Turning to the facts before it, the Court acknowledges the magnitude of the distress and suffering that the accident at issue must have caused to the applicants. It further acknowledges that the applicants were not awarded the full amount of compensation in respect of the non ‑ pecuniary damage that they had sought before the Ä°dil Civil Court of First Instance. The Court also notes, however, that the applicants received the substantial sum of approximately EUR 438,000 from DEDAÅž to compensate them for their damage. Taking into account the fact that the third applicant himself was partially responsible for the accident (as established by the expert report, to which the applicants did not object), and the fact that the amount in question is significantly higher than awards made by the Court even in cases where negligence has resulted in death (see, for instance, Banel v. Lithuania , no. 14326/11, § 77, 18 June 2013; see also Gençarslan v. Turkey ( dec. ), no. 62609/12, 14 March 2017), the Court cannot accept the first three applicants ’ argument that the compensation in respect of non-pecuniary damage that they were awarded was inadequate.

28 . To the extend that the applicants complain about the length of the compensation proceedings, the Court finds it regrettable that the compensation proceedings could not be terminated earlier, however, referring to its finding above (see paras 19-21) it considers that the applicants should seek redress before the Compensation Commission.

29 . It follows that the applicants ’ complaint under Article 8 of the Convention must be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

30 . The applicants further complained under Article 6 § 3 that their submissions before the İdil Civil Court of First Instance had not been taken into consideration. They also alleged under Article 2 of Protocol No. 1 to the Convention that the third applicant had not been able to continue his education on account of his disability as a result of the accident.

31 . The Court notes that the applicants did not raise these complaints during the domestic proceedings. It therefore finds that the applicants ’ complaints under this head must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 July 2020 .

Hasan Bak ırcı Valeriu Griţco Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Åžerife AÅžKIN

1966Turkish

ÅžIRNAK

2Halef A Åž KIN

1964Turkish

ÅžIRNAK

3Feyzullah AÅžKIN

1988Turkish

ÅžIRNAK

4Bünyamin AŞKIN

2001Turkish

ÅžIRNAK

5Abdullah AÅžKIN

1986Turkish

ÅžIRNAK

6Nasihat AÅžKIN

1985Turkish

ÅžIRNAK

7Hasan AÅžKIN

1995Turkish

ÅžIRNAK

8Hıcran AŞKIN

1996Turkish

ÅžIRNAK

9Ä°rem AÅžKIN

1997Turkish

ÅžIRNAK

10Mehmet Ata AÅžKIN

1993Turkish

ÅžIRNAK

11Suat AÅžKIN

1998Turkish

ÅžIRNAK

12Sümeyye AŞKIN

1993Turkish

ÅžIRNAK

13Züleyha AŞKIN

1991Turkish

ÅžIRNAK