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SECOND
SECTION
CASE OF AKSEKİ v. TURKEY
(Application
no. 19509/07)
JUDGMENT
STRASBOURG
6
March 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Akseki v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19509/07) 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 a
Turkish national, Mr Ümit Akseki (“the applicant”),
on 27 April 2007.
- The
applicant was represented by Ms İ. Baş and Ms E. Tangobay,
lawyers practising in İzmir. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
27 August 2009 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in İzmir.
- On
20 April 2000 the applicant was involved in a traffic accident which
caused the death of his wife and resulted in bodily injuries to him.
- On
13 April 2001 the applicant, along with three others, lodged an
action with the Banaz Civil Court of First Instance, requesting
compensation for pecuniary and non-pecuniary damage which he had
suffered as a result of the traffic accident.
- In
the meantime, on 21 November 2002 the criminal proceedings which had
been brought against the applicant before the Banaz Criminal Court
concerning the same incident became final and the decision was
submitted to the case file in question.
- At
the hearing on 9 May 2003 the court ordered two separate expert
opinions on the estimation of the applicant’s damage and
compensation for loss of financial
support.
- On
20 August 2003 and 8 October 2003 two expert reports were prepared.
- On
3 June 2004 the court commissioned another expert report.
- On
26 January 2005 the committee of experts requested further documents
from the court.
- Upon
the completion of shortcomings, on 8 September 2005 an expert report
was submitted to the court.
- On
11 May 2005 the court ordered a supplementary report from the same
committee at the request of the defendant, which was received on
16 February 2006.
- On
11 May 2006 the court partially granted the applicant’s
request. It awarded the applicant 55,938 Turkish liras
(TRY) for pecuniary damage and TRY 1,500
for non-pecuniary damage, plus statutory interest running from the
date of the event.
- On
16 January 2007 the judgment was served on the parties.
- The
parties did not appeal against this judgment and it became final on 1
February 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument claiming that there
had been no delay in the proceedings that may be attributable to the
State as the trial court had to wait for the expert reports and the
outcome of the criminal proceedings against the applicant in which
the final judgment was delivered on 21 November 2002.
- The
applicant submitted, inter alia, that the case had not been
complex and that the domestic court had considerably prolonged the
proceedings.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- The
period to be taken into consideration began on 13
April 2001 and ended on 11 May 2006.
It thus lasted approximately five years for one level of
jurisdiction.
- The
Court observes at first hand that the trial court rescheduled the
hearings for a later date without taking any substantial decision
until the criminal proceedings against the applicant became final on
21 November 2002. It further notes that the
court waited for expert reports to be prepared. In this regard the
Court considers the primary responsibility for delays resulting from
the provision of expert opinions rests ultimately with the State (see
Kulikowski v. Poland, no. 18353/03, § 50, 19 May 2009,
and Capuano v. Italy, 25 June 1987, § 32, Series A
no. 119). It also recalls that Article 6 § 1 imposes
on Contracting States the duty to organise their judicial systems in
such a way that their courts can meet the obligation to decide cases
within a reasonable time (see Löffler v. Austria (no. 2),
no. 72159/01, § 57, 4 March 2004).
- Having
regard to the unnecessary delays in the proceedings, the Court is not
convinced that the domestic court showed the required diligence to
conclude the proceedings within a reasonable time, despite the
importance of a matter at stake for the applicant in the court
proceedings.
- The
Court has frequently found a violation of Article 6 § 1 of the
Convention in cases raising similar issues to the one in the present
case (see, among others, Frydlender v. France [GC], no.
30979/96, §§ 42-46, ECHR 2000 VII, and Daneshpayeh
v. Turkey, no. 21086/04, §§ 26-29, 16 July 2009).
Having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present case.
It concludes therefore that in the instant case the length of the
proceedings failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that there was no domestic remedy available
under the Turkish law whereby he could challenge the excessive length
of proceedings. He relied on Article 13 of the Convention which reads
as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
- The
Government argued that the applicant could have brought action before
the administrative courts for the damages he allegedly suffered.
- As
this complaint is linked to the above complaint under Article 6, it
must therefore also be declared admissible. The Court has examined
similar cases on previous occasions and has found violations of
Article 13 of the Convention in respect of the lack of an effective
remedy under Turkish law whereby the applicant could have contested
the length of the proceedings at issue (see Daneshpayeh, cited
above, §§ 37 and 51; and Bahçeyaka v. Turkey,
no. 74463/01, §§ 26-30, 13 July 2006; and Tendik and
Others v. Turkey, no. 23188/02, §§ 34-39, 22
December 2005). It finds no reason to depart from that conclusion in
the present case.
There
has accordingly been a breach of Article 13.
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
- The
applicant claimed 10,000 euros (EUR) in respect of pecuniary and EUR
25,000 in respect of non-pecuniary damage.
- The
Government contested these claims, considering the requested amounts
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 3,000 under that head.
B. Costs and expenses
- The
applicant also claimed 116 Turkish liras (TRL) for the costs and
expenses incurred before the Court and TRL 3,000 in respect of
lawyer’s fee. The applicant submitted receipts and bills in
support of his claim.
- The
Government contested these claims as being unsubstantiated.
- 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 (see Sawicka v. Poland,
no. 37645/97, § 54, 1 October 2002). Making its own estimate
based on the receipt indicating the payment made to the applicant’s
lawyer as well as the bills attesting the postal and translation
expenses, and ruling on an equitable basis, the Court awards the
applicant EUR 1,250 in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 complaints concerning the excessive
length of the proceedings and lack of effective
remedy admissible;
- Holds that there has been a violation of
Articles 6 § 1 and 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,250 (one thousand two hundred fifty euros), plus any tax that may
be chargeable, in respect of costs and expenses;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy
Registrar President
