Communicated on 4 November 2014

SECOND SECTION

Application no. 47098/10 Veysi KULPU against Turkey lodged on 9 June 2010

STATEMENT OF FACTS

The applicant, Mr Veysi Kulpu , is a Turkish national, who was born in 1964 and lives in Batman. He is represented before the Court by Mr M. Korkmaz , a lawyer 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 Bakanl ığı Akaryak ı t 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 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 10 November 2006 the applicant brought an action for compensation against TÜPRAŞ before the Batman Civil Court of First Instance, for the damages he had sustained as a result of the explosion, including structural damages, the reduction in the value of his property and the loss of rent. The applicant stated in his petition that following the explosion, Toptancılar Sitesi had been declared a hazardous area by the Batman Governor ’ s Office and had accordingly been evacuated, which had greatly reduced the value of his property. Moreover, while expert reports indicated that the explosion had occurred as a result of the accumulation of oil and gas under the ground for over twenty years, the necessary steps had not been taken to stop the leakage and the area was still at risk of new explosions.

An expert report submitted to the first-instance court on 15 March 2007 found that the applicant ’ s property had sustained structural damage in the amount of 12,809.07 Turkish liras (TRY) as a result of the explosion. In addition, the value of the property had been reduced by TRY 64,445.06 and he had also sustained loss of rent in the amount of TRY 9,000.

Relying mainly on this expert report, as well as the report previously submitted in case no. 2004/966 E., on 18 April 2007 the Batman Civil Court of First Instance ordered the compensation of the applicant ’ s damages by TÜPRAŞ, except for the loss of rent which it found unsubstantiated. In its decision, the first-instance court specified that the legal responsibility of TÜPRAŞ for the explosion had only been established when its earlier judgment in case no. 2004/966 E. had been upheld by the Court of Cassation. In these circumstances, the applicant had brought his action within the statutory time-limit, which had only started running on the date when both the damage and the identity of the responsible party were known to him.

On 24 June 2008 the Court of Cassation quashed the judgment of the lower court, holding that the compensation claim had not been brought within the one-year time limit set out in Article 60 § 1 of the Code of Obligations. The Court of Cassation stated that the relevant provision did not require identification of the liable party with certainty before bringing a compensation claim; a mere presumption, on the basis of probabilities, would suffice to trigger the time ‑ limit in question. Since the applicant was in a position to suspect the responsibility of TÃœPRAÅž for the explosion as early as the date of the incident, he had failed to introduce his compensation claim within the required time-limit. The Court of Cassation stressed that some other property owners in the area had brought cases against TÃœPRAÅž in 2004.

On 13 February 2009 the Batman Civil Court of First Instance rejected the applicant ’ s compensation claims in accordance with the ruling of the Court of Cassation.

On 15 October 2009 the Court of Cassation upheld the lower court ’ s judgment and on 18 February 2010 it dismissed the applicant ’ s rectification request.

3. Criminal proceedings initiated against TÃœPRAÅž executives

According to the limited information in the case-file, a criminal investigation was initiated against a number of TÃœPRAÅž executives in relation to the explosion that took place on 3 May 2004. It appears that the expert reports obtained during the investigation and the ensuing criminal trial were not able to ascertain the source of the leak.

In its judgment dated 1 May 2008 the Batman Assize Court held that while its proximity to the site of explosion suggested the responsibility of TÃœPRAÅž for the explosion, it was not possible to determine whether any of the individual suspects bore liability for it, particularly bearing in mind that the leak had been ongoing for a considerable amount of time. The assize court accordingly acquitted the TÃœPRAÅž executives.

The Court has no further information regarding the criminal proceedings, but it appears that the applicant had not joined them as a civil party ( m ü dahil ).

B. Relevant domestic law

Under Article 60 § 1 of the Code of Obligations in force at the material time, an action for compensation for damage became 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 hearing within the meaning of Article 6 § 1 of the Convention? In particular, did the dismissal of the applicant ’ s compensation claim as being out of time violate his right of access to court, implicitly guaranteed by Article 6 § 1 of the Convention? Was the manner in which the national courts 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, particularly in view of the applicant ’ s arguments that ( i ) he had no way of ascertaining TÜPRAŞ ’ s liability for the oil leak prior to the Batman Civil Court of First Instance decision in case no. 2004/966 E.; and (ii) that the damage to his property was still continuing on account of the ongoing oil leak?

The parties are requested to submit sample decisions of the Court of Cassation regarding the interpretation and application of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations, with examples explaining when a victim of a tortious act is considered to “know” ( ı tt ı la ) the identity of the “ tortfeasor ” ( fail ) and the damage sustained, and what “damage” means for the purposes of the relevant provision.

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 Government are also requested to submit the following information and/or documents:

- Information regarding the legal status and ownership of TÃœPRAÅž at the time of the explosion that took place in Batman on 3 May 2004;

- A copy of the case-file pertaining to case no. 2004/966 E. concerning the compensation proceedings before the Batman Civil Court of First Instance;

- A copy of the case file pertaining to the compensation proceedings initiated by the applicant before the Batman Civil Court of First Instance, including any expert reports submitted to that file and the petitions lodged by the applicant with the first-instance and the appeal courts;

- A copy of the case-file concerning the criminal proceedings brought against TÃœPRAÅž executives before the Batman Assize Court (case no. 2005/1 E.), including the bill of indictment, expert reports obtained during the criminal investigation and trial, and Court of Cassation decisions, if any ;

- All the reports issued by the fact-finding commission established by the Batman Governor ’ s Office in the aftermath of the explosion ( Batman G ı da Toptanc ı lar ı Sitesinde Meydana Gelen Patlama ve Yang ı n ı n Nedenini Ara ş t ı rma Komisyonu ), as well as any expert reports submitted to that commission ;

- Any other investigative steps taken to shed light on the circumstances surrounding the explosion in question .