Information Note on the Court’s case-law 190

November 2015

Sefer Yılmaz and Meryem Yılmaz v. Turkey - 611/12

Judgment 17.11.2015 [Section II]

Article 6

Administrative proceedings

Article 6-1

Access to court

Limitation period commencing on date of incident rather than date applicants became aware of possible negligence by authorities: violation

Facts – The applicants were the parents of a man who died in S eptember 2008 while he was doing his military service. The military prosecutor’s office was immediately informed and a criminal investigation was opened automatically.

In December 2009 the military prosecutor discontinued the proceedings. The applicants’ a ppeal against that decision was rejected by the military tribunal in January 2011. In parallel, the applicants, relying on the Constitution and Law no. 1602 on the Military Administrative High Court, in August 2010, lodged a preliminary application with th e Interior Minister for compensation.

As their application was implicitly rejected, when in November 2010 they had not received any reply after two months, the applicants lodged an appeal in the Military Administrative High Court, but on 12 January 2011 it was dismissed for failure to comply with the time-limit for such preliminary applications. A further application for rectification of that judgment was dismissed in May 2011.

Law – Article 6 § 1: As regards the determination of the starting point of the o ne-year period on the expiry of which the action in question was deemed statute-barred, it was apparent from the Court’s case-law that, where a compensation claim was based on an alleged fault or negligence, it was from the time when the claimant became or should have become aware of the fact constituting that fault or negligence that he or she had grounds to act.

The applicants knew that their son had died on 9 September 2008. However, they had not been aware of the exact circumstances of his death until the discontinuance decision was notified to them. The details were, however, decisive for the lodging of an appe al with the Military Administrative High Court.

In addition, it was for the applicants to adduce not only evidence of the causal link between the damage sustained and the military service performed by their son, but also evidence of the fault or negligence of the authorities.

While the causal link had been established at the time when the incident occurred, the evidence of any fault or negligence of the authorities was lacking. Before the discontinuance had been notified, the applicants had been unaware tha t the military authorities had ordered their son to patrol at night with a hand grenade at his disposal. That detail would, however, have been essential for an action to establish responsibility in the Military Administrative High Court.

It was therefore o n the date when the applicants had been notified of the discontinuance decision that they had properly gained access to the details of the investigation and had been informed of any possible fault or negligence on the part of the authorities for the purpos es of bringing a claim.

Accordingly, by rejecting their action as out of time in those circumstances, on the ground that the administrative appeal had not been lodged within a time-limit calculated from the date of the incident rather than from the awarene ss of any negligence on the part of the authorities, the Military Administrative High Court had deprived the applicants of their right of access to a court.

Conclusion : violation (unanimously).

The Court also found unanimously that there had been no violation of Article 2 under its substantive and procedural limbs.

Article 41: EUR 6,000 awarded jointly to the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dism issed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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