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SECOND
SECTION
CASE OF ALİCAN v. TURKEY
(Application no. 21868/02)
JUDGMENT
STRASBOURG
26 January 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Alican v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21868/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Turkish nationals, Mr Kamuran Alican,
Mr Ramazan Alican and Mr Ahmet Alican (“the applicants”),
on 27 February 2002.
- The
applicants were represented by Mr F. Gümüş, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- On
10 September 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1983, 1946 and 1936
respectively. The first and the third applicant live in Diyarbakır
and the second applicant resides in Manisa. The application concerns
the wounding of the first applicant, who was eleven years old at the
time, and the death of the second and third applicants' sons, Çetin
Alican and İlhami Alican, who were fourteen and thirteen years
old respectively, as a result of the explosion of an RPG-7 (anti-tank
grenade launcher) grenade outside the applicants' village, Kıyıdüzü,
in Van.
- The
facts of the case, as submitted by the parties and as they appear
from the documents submitted by them, may be summarised as follows.
A. The incident
- On
22 April 1994 Kamuran Alican, Çetin Alican and Ilhami Alican
took their animals out to graze. When the animals returned to the
village without the children, the villagers launched a search party
and informed the military nearby; the Van 6th Armoured
Brigade Barracks. A search was also unsuccessfully conducted within
the military confines. The next day, the dead bodies of Çetin
Alican and Ilhami Alican were found in a wheat field between the
army barracks and Nemrut Mountain. The first applicant, who had
injuries to his eyes and legs, was found a few hundred metres away.
He was immediately taken to Tatvan State Hospital for treatment. As a
result of the explosion, the first applicant suffered partial loss of
the sight of one eye and the total loss of sight in the other.
- According
to the first applicant's testimony, given to a prosecutor on 10 June
1994, the children were grazing their sheep in the field when they
found an object with an iron head which looked like a bullet. The
first applicant left the other two children to find water while they
were trying to hit the iron head with pieces of metal. At that moment
the bullet exploded.
B. The criminal investigation
- On
23 April 1994 the Tatvan public prosecutor instigated an
investigation into the incident. The prosecutor noted that there were
numerous trenches around the area for tank and gun practice. The
remains of the ammunition at the scene were secured. Reports and
sketches were drafted and a post mortem examination was
conducted on the deceased. The cause of death was attributed to
hemorrhagic shock and the doctor deemed it unnecessary to conduct a
classic autopsy of the deceased.
- On
4 May 1994 the Tatvan public prosecutor decided that he lacked
jurisdiction to investigate the incident and forwarded his decision
to the military prosecutor's office at the Van 21st
gendarmerie border brigade commandership (“the military
prosecutor”).
- The
military prosecutor instigated an investigation into the incident. In
particular, he requested the official records regarding the use of
grenade launchers by the military during training, and medical
reports regarding the health of the first applicant.
- In
the course of the investigation evidence was gathered from the first
applicant, the third applicant, the head of the village, Mr M.
M. Alican, a fellow villager, the soldiers on patrol duty on the
day of the incident and a higher-ranking military official.
- On
6 May 1997 the military prosecutor gave a decision that there was no
need to initiate criminal proceedings on the ground that there was no
fault or negligence attributable to anyone except Kamuran Alican,
Çetin Alican and İlhami Alican. In his decision, the
prosecutor noted that the children, while they were grazing their
animals, had collected, near the trenches, a grenade from an RPG-7
grenade launcher and parts of a rocket, and that the incident had
occurred while they were trying to explode them. He further noted
that the incident had occurred 2,200 metres away from the Armoured
Brigade Barracks where three fields met and that it was not a
military area. In this connection, the prosecutor held that,
according to the official military records, no unexploded grenades or
rockets had been found after military training exercises, that the
origin of these artefacts could not be established and that, even
assuming that they were launched from the military training field,
their range made it impossible for them to have landed 2,200 metres
away from it.
- The
decision of the military prosecutor was served on 29 May 1997 on
Ahmet Alican, on 7 July 1997 on Kamuran Alican and on 19 July
1997 on Ramazan Alican. The applicants did not object to the military
prosecutor's decision.
C. Compensation proceedings
- On
20 February and 20 May 1995 the applicants made applications to the
Ministry of the Interior for compensation on account of the injury
sustained by the first applicant and the death of the other
applicants' sons. They received no positive reply.
- On
4 May 1995 the first and the second applicants, and on 17 April
1995 the third applicant, brought actions for compensation against
the Ministry before the Van Administrative Court. They were
represented by the same lawyers. In their petitions, the applicants
claimed that Kamuran Alican had been injured and Çetin Alican
and Ilhami Alican had died as a result of a mine which had been
placed there by the gendarmerie police station. The first applicant
requested the court to award 1,000,000,000 Turkish liras (TRL) for
pecuniary damage and TRL 100,000,000 for non pecuniary damage.
The second and the third applicant each requested TRL 500,000,000
for loss of income on account of the death of their sons.
1. In respect of Kamuran Alican
- On
26 January 1998 the Van Administrative Court, basing its decision on
the doctrine of “social risk”, awarded the applicant's
claim in full. Although the amount determined by experts for
pecuniary damage was significantly higher, the court was bound by the
amount requested by the applicant.
- The
Ministry appealed.
- On
8 February 2001 the Supreme Administrative Court quashed the judgment
of the first-instance court on the ground that the latter had failed
to determine which administrative entity, that is either the Ministry
of the Interior or the Ministry of Defence, had responsibility for
compensating the applicant.
- On
28 September 2001 the Van Administrative Court, deciding that the
Ministry of the Interior had responsibility, gave its judgment. The
court held as follows:
“ ...
According to the report of the public prosecutor, the
incident took place 1,500 metres from the Van 6th
Armoured Brigade Barracks. (According to the sketch plan the distance
is 2,200 metres.) It was a grenade for a rocket launcher called
RPG-7, which exploded. The explosion occurred in an area where
rockets are launched. Yet the origin of the grenade which caused the
explosion is unknown. According to the inventory of the Turkish
Military Forces, this type of weapon
(RPG-7) is used by the
military. However, it was included in the inventory of the
6th Armoured Brigade after the date of the incident
in question. The maximum shooting range of the RPG-7 is 700 metres.
The results of an investigation into the military units deployed in
the region prior to the incident revealed that only one of these
units had engaged in shooting practice. According to the records of
that unit they had left no unexploded grenades. The rocket launcher
in question is frequently used by members of the PKK terrorist
organisation. Furthermore, the incident took place 1,500 metres from
the barracks, in an area, which according to the attached map, has
been declared to be a 2nd degree military security zone.
Although it is established that the explosion occurred
in the vicinity of the rocket launching zone, since the distance from
the barracks was 1,500-2,200 metres it cannot be accepted that the
unexploded grenade which caused the explosion was one used during a
military unit's training. The investigation conducted by the military
prosecutor at the 21st Gendarmerie
Division Commander's office resulted in the same conclusion.
Moreover, the conditions in the region are particular: the weapon in
question is frequently used and hidden by the terrorist organisation.
The grenade might have been left by terrorists who attacked the
barracks. It should therefore be concluded that the damage in the
present case was not caused by the activities of military forces but
rather by terrorist activities. Nevertheless, taking into account the
fact that a state of emergency was in force in the region at the time
and the extraordinary nature of the damage, compensation should be
awarded by the administration in accordance with the theory of
“social risk”.
... The plaintiff should therefore be paid his claim in
full, TRL 1,000,000,000
for pecuniary damage... although according to the expert reports,
pecuniary damage in the present case could amount to TRL
19,237,229,000.
... As regards non-pecuniary damage, the plaintiff
should be awarded TRL 100,000,000.
- The
Ministry appealed.
- On
23 May 2002 the Supreme Administrative Court upheld the judgment of
the first-instance court.
2. In respect of Ramazan Alican
- On
19 March 1998 the Van Administrative Court, basing its decision on
the doctrine of “social risk”, awarded the applicant a
certain amount of compensation.
- The
Ministry appealed.
- On
22 December 1998 the Supreme Administrative Court quashed the
judgment of the first-instance court on the ground that the latter
had failed to determine which administrative entity, that is either
the Ministry of the Interior or the Ministry of Defence, had
responsibility for compensating the applicant.
- On
16 November 1999 the Van Administrative Court, basing its decision on
the doctrine of “social risk”, on the same ground as
above, awarded the second applicant TRL 366,954,367
in respect of pecuniary damage together with legal interest running
from the date of the incident, 23 April 1994.
- The
Ministry appealed.
- On
9 April 2001 the Supreme Administrative Court upheld the judgment as
regards the amount of compensation awarded but quashed the judgment
of the first-instance court in respect of the date from which the
interest should run.
- On
28 November 2001 the Van Administrative Court held that the date of
interest would start to run from the date when the applicant lodged
an application with the Ministry, i.e. 20 February 1995.
3. In respect of Ahmet Alican
- On
19 March 1998 the Van Administrative Court, basing its decision on
the doctrine of “social risk”, awarded the applicant a
certain amount of compensation.
- The
Ministry appealed.
- On
15 March 2001 the Supreme Administrative Court quashed the judgment
of the first-instance court on the ground that the latter had failed
to determine which administrative entity, either the Ministry of the
Interior or the Ministry of Defence, had responsibility for
compensating the applicant.
- On
9 October 2001 the Van Administrative Court, basing its decision on
the doctrine of “social risk” on the same ground as
above, awarded the third applicant TRL 305,135,146
in respect of pecuniary damage together with legal interest running
from 20 May 1995.
- The
Ministry appealed.
- On
31 December 2004 the Supreme Administrative Court upheld the judgment
of the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time can
be found in the following judgments: Doğan and Others v.
Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§
68-69 and 75-78, ECHR 2004 VI (extracts)), and Tepe v. Turkey
(no. 27244/95, §§ 115-119, 9 May 2003).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE
CONVENTION
- The
applicants complained that the injury sustained by Kamuran Alican and
the death of Çetin Alican and Ilhami Alican violated their
right to life under Article 2 of the Convention. They further
maintained under Article 13 of the Convention that no effective
investigation was conducted into the incident in order to find those
responsible.
- The
Court considers that the applicants' complaint falls to be examined
under Article 2 of the Convention alone, which read, in so far as
relevant, as follows:
“Everyone's right to life shall be protected by
law.”
- The
Government argued that an effective investigation had taken place and
that, subsequently, the applicants were awarded compensation. Thus,
they considered that the applicants were no longer victims under
Article 2, within the meaning of Article 34 of the Convention.
The Government further maintained that Kamuran Alican and Ahmet
Alican had failed to observe the six month rule prescribed by
Article 35 § 1 of the Convention.
- The
applicants did not specifically respond to the Government's
arguments.
- The
Court considers it unnecessary to determine whether the applicants
have victim status or have complied with the six-month rule within
the meaning of Article 35 § 1 of the Convention, since this part
of the application is inadmissible for the following reasons.
- The
Court reiterates the basic principles laid down in its judgments
concerning a State's obligations under Article 2 of the Convention
(see, in particular, L.C.B. v. the United Kingdom, 9 June
1998, § 36, Reports of Judgments and Decisions 1998 III;
Öneryıldız v. Turkey [GC], no. 48939/99,
§§ 89 and 91, ECHR 2004 XII; Vo v. France
[GC], no. 53924/00, § 90, ECHR 2004 VIII; and
Mastromatteo v. Italy [GC], no. 37703/97, §§ 90
and 94-95, ECHR 2002 VIII). It will examine the present case in
the light of those principles and in the light of the documentary
evidence adduced by the parties, in particular the documents
furnished by the parties in respect of the judicial investigations
carried out into the impugned incident, and the parties' written
observations on the merits.
- The
Court finds, having regard to the undisputed facts established by the
domestic authorities, that there is no evidence to conclude beyond
reasonable doubt that the unexploded grenade which injured Kamuran
Alican and caused the death of Çetin Alican and Ilhami Alican
had been abandoned there by security forces and that, consequently,
the State authorities had failed to take preventive operational
measures to protect the life of these individuals from military
activities in the region. However, the events leading to the first
applicant's injury and the death of the other applicants' sons are
matters which must also be addressed from the angle of the adequacy
of the mechanisms in place for shedding light on the course of those
events. In this connection, the Court observes that criminal
proceedings were promptly initiated ex officio by the Tatvan
prosecutor, who conducted an on-site visit and secured the collection
of forensic evidence. Subsequently, the investigation was transferred
to the military public prosecutor, who heard evidence from witnesses
and examined official records regarding the use of grenade launchers
by the military during training at the material time. The prosecutor
concluded that no fault could be attributed to the military
authorities. Although, this decision was served on the applicants
(see paragraphs 13 above), the applicants failed to object. They
thereby deprived the authorities of the opportunity to redress any
deficiencies there might have been in the course of the
investigation.
- As
to the administrative proceedings, the Court observes that the
applicants chose to institute a compensation claim against the
Ministry of the Interior. In their application the applicants claimed
that Kamuran Alican had been injured and Çetin Alican and
Ilhami Alican killed as a result of a mine which had been placed
there by the gendarmerie police station (see paragraph 15
above). The Court finds that the courts dealing with the applicants'
cases were indisputably empowered to assess the facts established
thus far, to apportion liability for the events in issue and to
deliver an enforceable decision. In the instant case, the
administrative courts, after having examined the documentary evidence
submitted to them, also concluded that no fault could be attributed
to the military authorities and that the grenade in question might
have been abandoned there by terrorists. Consequently, the domestic
courts attributed compensation to the applicants solely on the basis
of the “social risk” doctrine”, a no-fault-based
principle adopted by administrative courts in Turkey when awarding
compensation to those who suffer damage as a result of terrorist
acts, or in the fight against terrorism, without establishing the
identity of those responsible for the incident. In this connection,
the Court notes that the applicants, who were represented by lawyers
and who had the opportunity to participate actively in the
proceedings and to avail themselves of their procedural rights to
influence their course, chose not to appeal against the decisions of
the first instance courts to oppose their factual or legal
findings.
- In the light of the above, the Court finds no
indication in the circumstances of the present case, that there has
been a failure by the State to provide
a mechanism whereby the criminal
or civil responsibility of persons who may be held answerable could
be established. It follows that this part of the application must be
rejected as being manifestly ill-founded pursuant to Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
they had been denied a fair hearing on account of the excessive
length of the compensation proceedings, as a result of which the
amounts awarded to them failed to reflect the real damage incurred.
Article 6 § 1 of the Convention reads, in so far as
relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government argued that Kamuran Alican and Ahmet Alican had failed to
observe the six month rule laid down in Article 35 § 1 of
the Convention.
- The
applicants did not specifically respond to the Government's
arguments.
- The
Court reiterates that the six-month time-limit imposed by Article 35
§ 1 requires applicants to lodge their applications within six
months of the final decision in the process of exhaustion of domestic
remedies. In this connection, it further reiterates that the last
stage of domestic remedies may be reached shortly after the lodging
of the application, but before the Court is called upon to pronounce
on admissibility (see, for example, Sağat, Bayram and Berk v.
Turkey (dec.), no. 8036/02, 8 March 2007, and Yıldırım
v. Turkey (dec.), no. 40074/98, 30 March 2006). The
Court observes that the proceedings concerning the applicant's
allegations were concluded on 23 May 2002 and 31 December 2004,
which was before any Court ruling on admissibility. In view of the
Court's above considerations, the Court finds that the application
lodged on 27 February 2002 was introduced in conformity with
Article 35 § 1 of the Convention. It therefore rejects the
Government's preliminary objection in this connection.
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. This
part of the application must therefore be declared admissible.
B. Merits
- The
Government submitted that the length of the proceedings had not
exceeded the reasonable time requirement. They further maintained
that since an interest rate had been applied to the amount awarded,
the applicants had suffered no loss of value due to the length of the
proceedings.
- The
applicants maintained their allegations. The first applicant
submitted that, due to the excessive length of the proceedings and
the belated submission of the expert reports, they had been deprived
of the opportunity to introduce an additional compensation claim for
the damage they had sustained.
- The
periods to be taken into consideration began on 20 February 1995
for the first and second applicants and on 20 May 1995 for the third
applicant (see paragraph 14 above). They ended on 23 May 2002,
28 November 2001 and 31 December 2004 respectively (see
paragraphs 21, 28 and 34 above). The proceedings at issue thus
lasted seven years and three months, six years and nine months
and nine years and seven months, respectively, before two levels of
jurisdiction, with two remittals.
- The Court reiterates that the
reasonableness of the length
of proceedings
must be assessed in the light of the circumstances of the case
and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities and
what was at stake for the applicant in the dispute (see, among many
other authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- As
regards the complexity of the three present cases, the Court does not
consider that they presented any exceptional legal or factual
difficulties since the impugned proceedings concerned an action for
compensation in respect of the injury sustained by the first
applicant and the death of the second and the third applicants' son
as a result of the explosion of a rocket launcher bullet. The mere
fact that the domestic courts had to investigate the truth of the
applicants' allegations is not in itself sufficient to conclude that
the case was complex, particularly since the administrative courts
relied exclusively on documentary evidence and awarded compensation
on the basis of the “social risk” doctrine. However,
having regard to the subject matter of the case and the
socio-economic background of the applicants, the Court considers that
the subject matter of the case was important for them.
- As
regards the conduct of the applicants, the Court observes that it
does not appear that they contributed to the prolongation of the
proceedings. The Government have not argued the contrary.
- As
to the conduct of the domestic authorities, it is true that the
domestic courts delivered four decisions in the proceedings during
periods of seven years and three months, six years and nine months
and nine years and seven months respectively. In this connection, the
Court observes that it took the first instance court initially
between two years and eight months and three years to decide on the
merits of the applicants' compensation claims. It finds, having
regard to the fact that during that time the first-instance court
merely asked for the production of documents from various authorities
and twice sought experts' report without having to hold hearings,
hear witnesses or conduct on-site inspections, such durations to have
been unreasonable. Moreover, as regards the proceedings initiated by
the first and third applicants, the Court cannot overlook the fact
that an additional lengthy period - three years - elapsed between the
date of the decision of the Van Administrative Court and the date of
the Supreme Administrative Court's determination of the Ministry's
appeal against that decision. Such delays, when account is taken of
the high rate of inflation in Turkey at the time of the events,
undoubtedly caused a significant depreciation in the value of the
amounts asked by the applicants and in those subsequently awarded by
the domestic courts. Reiterating that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their legal systems in such a way that their courts can meet each
requirement of that provision, including the obligation to decide
cases within a reasonable time (see, among other authorities,
Frydlender, § 43, cited above), the Court finds that, in
the absence of any convincing explanation from the Government, the
above proceedings in the instant case were unnecessarily prolonged,
as the national courts failed to act with the necessary diligence.
- In
the light of the foregoing, the Court concludes that the “reasonable
time” requirement of Article 6 § 1 has not been satisfied.
Consequently, there has been a violation of Article 6 § 1 of the
Convention as regards the length of the compensation proceedings
brought by the applicants.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Only
the first applicant made claims under this provision, requesting
50,000 euros (EUR) for damage.
- The
Government contested the amount requested.
- The
Court considers that the first applicant must have sustained
non pecuniary damage as a result of the prolongation of the
compensation proceedings. Having regard to the particular
circumstances of the case and ruling on an equitable basis, it awards
Kamuran Alican EUR 5,000 under that head.
B. Costs and expenses
- The
first applicant also requested reimbursement of the costs and
expenses incurred before the Court. In support of his claim, the
applicant submitted a schedule of costs prepared by his lawyer and
which calculated the costs and expenses as TRL 3,350 (approximately
1,585 euros (EUR)).
- The
Government contested the amount.
- The
Court reiterates that an applicant is entitled to the reimbursement
of costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the documents in
its possession and the above criteria, the Court considers it
reasonable to award the applicant EUR 500 for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
breach of the applicants' right to a fair hearing on account of the
excessive length of the compensation proceedings, as a result of
which the amounts awarded to them failed to reflect the real damage
incurred, admissible, and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the first
applicant, Mr Kamuran Alican, within three months from the date on
which the judgment becomes final according to Article 44 §
2 of the Convention, the following amounts to be converted into
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros) in respect of non pecuniary damage,
plus any tax that may be chargeable;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
