Communicated on 4 November 2014

SECOND SECTION

Application no. 22625/10 Ahmet KÖLGE against Turkey lodged on 30 March 2010

STATEMENT OF FACTS

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

A. The circumstances of the case

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

1. Background to the case

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”).

On 3 May 2004 a big explosion occurred in Toptancılar Sitesi , which resulted in three deaths and many injuries. The explosion and the ensuing fire also damaged many properties in the vicinity, including that of the applicant.

A fact-finding commission was established in the aftermath of the incident by the Batman Governor ’ s Office to ascertain the cause of the explosion. It appears that the preliminary investigations led by the fact ‑ finding commission, with the assistance of experts, established that the explosion had been caused by an underground oil leak. The source of the leak, however, could not be identified. Amongst the initial suspects were TÃœPRAÅž, an oil storage and supply facility administered by the Ministry of Defence in the area ( Milli Savunma Bakanlığı Akaryakıt Ä°kmal ve NATO Pol Tesisleri ), and various private petrol stations.

On an unspecified date in 2004 one of the property owners in Toptancılar Sitesi brought an action before the Batman Civil Court of First Instance for the compensation of the damages he had sustained as a result of the explosion, against both TÜPRAŞ and the facilities of the Ministry of Defence. An expert report obtained during the proceedings identified the source of the leakage as TÜPRAŞ, but also suggested the responsibility of the State authorities, both as regards their failure to detect and prevent the leak, which must have been going on for over twenty years, and their negligence in authorising the establishment of residences and workplaces in such close vicinity to the refinery despite the apparent dangers. On the basis of that expert report, on 21 July 2006 the first-instance court established the sole liability of TÜPRAŞ for the explosion (case no. 2004/966 E.).

The judgment of the Batman Civil Court of First Instance was upheld by the Court of Cassation on 30 January 2007, and the rectification request of TÃœPRAÅž was rejected on 18 June 2007.

2. Compensation proceedings brought by the applicant

On an unspecified date in 2005 the applicant brought compensation proceedings before the Batman Civil Court of First Instance against both TÃœPRAÅž and the facilities of the Ministry of Defence for the depreciation of the value of his property as well as his loss of rent in the aftermath of the explosion.

An expert report submitted to the case-file on 20 December 2006 estimated that on account of the continuing risk of explosion in the area, the applicant ’ s property had lost 60,624.900 Turkish liras (TRY) in value and TRY 3,850 in rental income. It also stated that the explosion of 3 May 2004, which was equivalent to a magnitude 9 earthquake, had caused structural damage to the property in the amount of TRY 27,426.263.

On an unspecified date the Batman Civil Court of First Instance ordered TÃœPRAÅž to compensate the applicant for the depreciation in the value of his property in the full amount indicated in the expert report. However, it rejected his claim regarding the rental income.

On 28 March 2007 the applicant brought an additional action before the Batman Civil Court of First Instance, this time against TÃœPRAÅž alone, and requested to be compensated for the structural damage established in the expert report (TRY 27,426).

On 16 May 2008 the Batman Civil Court of First Instance rejected the applicant ’ s request for additional compensation as being time-barred. The court 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 damage and the party responsible for the damage were learned of by the victim, and in any event within ten years of the act that caused the damage. Bearing in mind that the applicant had already brought an action for compensation in relation to the explosion in question, he must have learned of the party responsible for his damage by the date on which he had brought that action at the latest. Accordingly, the additional action had not been brought within the one-year time-limit.

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.

B. Relevant domestic law

Under Article 60 § 1 of the Code of Obligations in force at the material time (Law no. 818), an action for compensation for damage becomes 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 commission of the act having caused the damage. The former Code of Obligations was repealed on 1 July 2012 , once the new Turkish Code of Obligations (Law no. 6098) came into force.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was denied a fair trial on account of the dismissal of his compensation claim as being out of time, which was 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 maintains under the same provision that the domestic court decisions lacked sufficient reasoning.

The applicant contends that his property rights, as protected under Article 1 of Protocol No. 1 to the Convention, were violated on account of the damages he suffered following the explosion of 3 May 2004, and that he was not indemnified for his damages. He also maintains that the State authorities failed to fulfil their positive obligations under Article 1 of Protocol No. 1 to protect his property rights. He lastly argues under this provision that the continuing restrictions on his use of property due to the ongoing danger of explosion in Toptancılar Sitesi , which essentially results from the authorities ’ failure to stop the oil leak and clean up the area, constitutes a further violation of his rights under Article 1 of Protocol No. 1.

The applicant complains under Article 13 that the authorities did not take the necessary steps to elucidate the circumstances surrounding the explosion in order to determine liability and punish those responsible, including any State agents involved, and that the criminal investigation into the incident were conducted in bad faith and were ineffective.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the dismissal of the applicant ’ s request to increase his compensation claim by way of an additional action as being out of time violate his right of access to court, implicitly guaranteed by Article 6 § 1 of the Convention?

(a) Was the manner in which the Batman Civil Court of First Instance calculated the statutory limitation period in the applicant ’ s case foreseeable and in compliance with the settled jurisprudence of the Court of Cassation regarding the application of Article 60 § 1 of the former Code of Obligations?

( b) Did the applicant “know” ( ı tt ı la ), within the meaning of Article 60 § 1 of the former Code of Obligations, the identity of the party liable for the damage he had sustained at the time he brought his initial action for compensation before the Batman Civil Court of First Instance, having regard to the fact that he had brought it against two different companies?

(c) Was the applicant in a position to reasonably assess the scope and extent of his damage prior to the submission of the report of the court ‑ ordered experts during the initial compensation proceedings?

The parties are requested to support their responses with examples from the case-law of the Court of Cassation. The parties should particularly submit examples demonstrating when a victim of a tortious act is considered to “know” ( ıttıla ) the identity of the “ tortfeasor ” ( fail ) and the damage sustained, and what “damage” means for the purposes of Article 60 § 1 of the former Code of Obligations. They are also requested to indicate, again with examples from the domestic case-law, whether the act of bringing an action for compensation constitutes conclusive evidence that the requisite knowledge has been acquired .

The parties are further requested to submit the case file pertaining to the compensation proceedings before the Batman Civil Court of First-Instance, both in relation to the initial and the additional actions, including the petitions lodged by the applicant with the first-instance and the appeal courts .

2. Was the applicant ’ s right to property, as protected under Article 1 of Protocol No. 1 to the Convention, violated on account of the oil leak that led to an explosion on 3 May 2004?

(a) Have the State authorities complied with their positive obligations under Article 1 of Protocol No. 1 to take precautionary measures to protect the applicant ’ s property (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004 ‑ XII )? In particular:

( i ) Were the State authorities aware of the oil leak prior to the explosion of 3 May 2004?

(ii) Was there an adequate legislative framework in place to regulate and supervise the setting up and the operation of oil refineries, including town planning restrictions in their proximity?

(iii) Did the State authorities conduct an effective official investigation to shed light on the circumstances surrounding the explosion and to identify those responsible for it, including any State agents or authorities?

(iv) Was the applicant provided with an appropriate legal mechanism, with the necessary procedural guarantees, to vindicate his rights effectively, including by claiming damages in respect of the losses he had sustained (see, mutatis mutandis , Kotov v. Russia [GC], no. 54522/00, §§ 112-114, 3 April 2012)?

(b) Is there a continuing restriction on the applicant ’ s use of his property? If so, does that restriction amount to an interference ? Moreover, what is the legal basis for that restriction and does it impose a disproportionate and excessive burden on the applicant?

The Government are requested to indicate whether the oil leak originating from the TÃœPRAÅž Batman Oil Refinery has been stopped and to provide information as to the progress made in cleaning up the underground oil leak.

The applicant is requested to indicate whether he joined the criminal proceedings against TÜPRAŞ executives as a civil party ( müdahil ) and, if so, to provide a copy of the criminal case file, including any Court of Cassation decisions .