Information Note on the Court’s case-law No. 163

May 2013

Güvenç v. Turkey ( dec. ) - 43036/08

Decision 21.5.2013 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to bring action for damages in administrative courts while case against alleged defendant was still pending before the criminal courts: inadmissible

Facts – A member of the three applicants’ family died after being electrocuted because of an electrical fault in the water pump of a fountain in the gardens of a mosque. The applicants applied to the Court alleging a violation of Article 2 of the Convention, and also complained, under Article 6, about the length of the criminal proceedings against a municipal employee responsible for the maintenance of the fountain.

Law – Article 35 § 1: The applicants had not lodged a claim for compensation with the administrative courts. Had they done so, they would have given the authorities an opportunity to afford redress for the alleged damage within the domestic legal system, and to acknowledge wrongful negligence on the part of the administrative authorities in the maintenance and supervision of their infrastructures which had resulted in their relative’s death. It should be noted in this connection that the civil claim was not dependent on the outcome of the criminal proceedings in this case. Unlike in the French legal system examined in the case of Perez v. France ([GC], no. 47287/99 , 12 February 2004), which established the principle that “civil proceedings must await the outcome of criminal proceedings”, under Turkish law victims could submit a claim for compensation to the civil or administrative courts at the same time as – or even after – the criminal action. The administrative or civil courts were not bound by criminal law considerations when ruling on a person’s liability. They were not obliged to comply with the rules of criminal law or with a criminal court’s decision to acquit someone of the act at the origin of the civil proceedings, or to go along with the criminal court’s findings as regards the existence or the seriousness of a fault. Therefore, if the applicants had lodged a claim for damages with the administrative courts, those courts would not have based their findings on criminal law considerations but on the principles of administrative law governing the liability of the administrative authorities.

Conclusion : inadmissible (failure to exhaust domestic remedies).

Article 35 § 3: As to the allegedly unreasonable length of the criminal proceedings instituted against a third party before the criminal court, the Court noted that although the applicants had applied to join the proceedings as an intervening civil party, they had never submitted a quantified claim for damages or even expressly claimed compensation for their loss before the criminal courts. In other words, they had joined the proceedings as an intervening civil party for purely punitive purposes. That being so, the fact that they had joined the criminal proceedings as an intervening civil party did not fall within the scope of Article 6 of the Convention.

Conclusion : inadmissible (incompatible ratione materiae ).

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

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