SECOND SECTION

DECISION

Application no. 50480/09 Yasemin ÃœLGEN against Turkey

The European Court of Human Rights (Second Section), sitting on 26 N ovember 2019 as a Committee composed of:

Valeriu Griţco , President, Egidijus Kūris , Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 4 September 2009,

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

The applicant, Ms Yasemin Ülgen , is a Turkish national, who was born in 1958 and lives in Adana. She was represented before the Court by Mrs B. Günyeli , a lawyer practising in Adana.

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

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

2 . On 29 March 1995 a gendarmerie staff sergeant, M.A. was wounded during a clash between unidentified persons in Diyarbakır. According to the incident report dated 30 March 1995, four dead bodies were discovered in the scene, who were indicated as “PKK terrorists” and only one of them could be identified. According to a hand written report dated 7 February 2000, the applicant ’ s husband, V.Ü., had been among the dead terrorists.

3 . As a result of suffering injuries, M.A. brought compensation proceedings against the Ministry of Interior (“the Ministry”) and was awarded pecuniary and non-pecuniary damages.

4 . On an unspecified date the Ministry paid the compensation as awarded by the domestic courts to M.A.

5 . The applicant submitted that her husband had left their house on 14 April 1994 and never returned.

6 . On 10 October 1996 she made a request with the Kulp public prosecutor ’ s office in Diyarbakır after reading the death announcement of her husband in a newspaper dated 26 May 1995. She requested from the public prosecutor to clarify whether her husband had been among the bodies discovered in the incident of 29 March 1995. She submitted her husband ’ s photographs and gave a description of his physical appearance. In her request she indicated her full address in Adana.

7 . In his reply of 6 November 1996, the public prosecutor noted that the photographs sent by the applicant matched those that were on the file concerning the incident of 29 March 1995. However he noted that any further inquiries concerning the matter would have to be taken up with the Diyarbakır State Security Court ’ s Public Prosecutor Office since they were in charge of the investigation.

8 . Subsequently, on 30 April 1999, the applicant sought an order before the Adana Assize Court in Civil Matters (“Adana Civil Court”) for her husband to be declared presumed dead since he had been missing for more than five years.

9 . On 29 June 2000 the Adana Civil Court granted that request, holding the presumption to be effective from 14 April 1994.

10 . On 20 November 2000 the Ministry brought an action in subrogation ( rücuan tazminat ) before the Diyarbakır Assize Court in Civil Matters (“Diyarbakır Civil Court”) against, inter alios , the applicant, with a view to recover the compensation it had paid to M.A (see paragraph 4 above). The Ministry ’ s petition did not indicate the applicant ’ s address in full but noted that the applicant resided in the neighbourhood of Yeşilköy , Diyarbakır.

11 . On 6 December 2000 the Diyarbakır Civil Court sent a notice of proceedings to the applicant to the address indicated by the Ministry.

12 . The summons were returned to the court with the explanatory note that the applicant was not known to reside in the neighbourhood according to the knowledge of the elected neighbourhood official.

13 . On 15 May 2001 the Diyarbakır Civil Court wrote to the Kulp public prosecutor ’ s office with a view to finding the applicant ’ s current address.

14 . In their reply of 7 June 2001, the prosecutor ’ s office informed the court that the applicant had moved to Adana nearly thirty years ago but that her address was unknown.

15 . On 5 March 2002 the Diyarbakır Civil Court decided that a notification of proceedings should be published in a newspaper.

16 . Subsequent notifications concerning the proceedings were also published in the same fashion.

17 . On 6 May 2008 the Diyarbakır Civil Court ruled that the amounts paid by the Ministry to M.A., should be reimbursed by the defendants, including the applicant with statutory interest running from the date of the Ministry ’ s payment.

18 . In the absence of an appeal, the decision of 6 May 2008 became final on 17 June 2008.

19 . The Ministry initiated enforcement proceedings against the applicant through a bailiff ’ s office. A payment notice was served on the applicant at her home on 27 March 2009; but enforcement proceedings were subsequently discontinued on account of the fact that the Ministry did not pursue its claims.

20 . The Law on Notification (Law no. 7201) sets out the rule that notices are to be served on a person at his or her last known address (section 10). If a person ’ s address is unknown, the authority issuing the notice must make enquiries about his or her address to the government departments and institutions which it considers relevant and request a police investigation. Only if these steps fail, can notices be published via a newspaper (sections 28 and 29).

21 . The Government submitted examples from the case-law of the Court of Cassation, concerning appeals from defendants who had been unable to participate in the proceedings as a result of the notice of proceedings being announced in the newspaper; and appeals dealing with the substantive issues with respect to subrogation claims lodged by the State against individuals.

In cases where the defendants were not served by summons because their addresses were unknown at the time of the lodging of the proceedings and notice of proceedings were announced in a newspaper, the Court of Cassation accepted the defendants ’ appeal holding that the appeal request complied with the time-limit which started to run from the date when the defendants learned of the proceedings lodged against them. In most cases this date coincided when the payment order was served on the defendants. The Court of Cassation further quashed those judgments because the courts had resorted to the method of public announcement in a newspaper before investigating in an adequate manner the addresses of the defendants. In that connection, the Court of Cassation held that by failing to take additional steps after making an inquiry with the police department, the domestic courts had acted against the law and procedure (see, in particular, the judgments of 15 April 2008, no. E.2008/2469 K.2008/5257; 1 June 2009, no. E.2008/12356 K.2009/7351; 12 December 2013, E.2013/864 K.2013/19810; 20 December 2017, E.2016/964 K.2017/9609).

COMPLAINTS

22 . The applicant complained under Article 6 § 1 and 13 of the Convention that she only became aware of the judgment of 6 May 2008 when the payment order was served on her, by which time she had lost the right to appeal it.

23 . She further complained under Article 1 of Protocol No. 1 about being held financially accountable for the event that took place on 29 March 1995, as a surviving heir to her late husband whose participation in the self-same event, let alone as a terrorist, was questionable in view of the incident report of 30 March 1995.

THE LAW

24 . Relying on Article 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained of her involuntary non-participation in the proceedings before the Diyarbakır Civil Court and the outcome of those proceedings.

Article 6 of the Convention, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

25 . The Government argued firstly that the applicant had failed to lodge an appeal before the Court of Cassation when she learned of the judgment of 6 May 2008 against her through a payment order. In that connection, the Government referred to the well-established case-law of the Court of Cassation (see paragraph 21 above), explaining that the Court of Cassation did not reject an appeal as out of time in cases where the proceedings had been conducted in absence of a defendant, but took into account the date of learning. They further contended that the Court of Cassation quashed judgments of first-instance courts which resorted to the public announcement via the press procedure without first making a sufficient inquiry as to the address of a defendant. The Government therefore argued that the applicant had failed to exhaust a remedy that was capable of providing redress in respect of the applicant ’ s complaints and offered a reasonable prospect of success. The Government also argued that the applicant could have disclaimed the inheritance of her husband. Finally they argued that the applicant lacked victim status as the impugned judgment of 6 May 2008 had never been enforced against her.

26 . The applicant did not reply to the Government ’ s objection on non-exhaustion of domestic remedies but she maintained that the application should be examined on the merits.

27 . The Court reiterates that it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).

28 . Furthermore, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. As far as the Government are concerned, if they claim non-exhaustion they must satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009, and Nada v. Switzerland [GC], no. 10593/08, § 141, ECHR 2012). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others , cited above, § 77, and the cases cited therein).

29 . The Court observes that the applicant did not lodge an appeal before the Court of Cassation after becoming aware of the impugned judgment against her but made an application directly with the Court. The Court notes however that the case-law examples provided by the Government which pre- and post-date the applicant ’ s case, demonstrate that an appeal before the Court of Cassation even in cases where a defendant had become aware of a judgment rendered in his or her absence at the enforcement stage had prospects of suspect. The Court further notes that the Court of Cassation has examined within the scope of such an appeal whether there were circumstances justifying the first-instance court ’ s use of the public announcement procedure; and if not, it has quashed the judgments.

The Court further notes that that the applicant did not provide an explanation, in her submissions in reply to the Government ’ s observations, why she did not appeal against the judgment of 6 May 2008.

30 . In view of the above, the Court finds that the available domestic remedy – an appeal before the Court of Cassation – was capable of remedying directly the impugned state of affairs, seeing that the applicant ’ s core grievance concerned her involuntary non-participation of the proceedings. That remedy does not appear to be futile and the applicant failed to make use of it. Having regard to the principle of subsidiarity, the Court finds that the applicant has not exhausted the available domestic remedies.

31 . It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

32 . This conclusion makes it unnecessary for the Court to examine the remaining objections and arguments raised by the Government.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President