SACILIK AND OTHERS v. TURKEY - 43044/05 45001/05 - Chamber Judgment [2015] ECHR 377 (14 April 2015)

In the case of Saçılık and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          András Sajó, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller,
          Paul Lemmens,
          Egidijus Kūris,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 10 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 43044/05 and 45001/05) 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 25 Turkish nationals (“the applicants”) on 30 November 2005. The applicants’ particulars are set out in the attached table.

2. In a judgment delivered on 5 July 2011 (“the principal judgment”), the Court held that there had been a violation of Article 3 of the Convention, under both the substantive and the procedural limbs, regarding the 25 applicants (see Saçılık and Others v. Turkey (Merits and partial just satisfaction), nos. 43044/05 and 45001/05, § 108, 5 July 2011).

3. The Court noted in its principal judgment that on 5 July 2000 a large-scale security operation had been conducted in the prison where the applicants were being detained. The reason for the operation was that a number of remand prisoners, amongst them some of the applicants, had been refusing to go to the courthouse for their hearings on the ground that on their way to and from a previous court hearing they had been beaten by the escorting gendarmes (ibid. §§ 6-7).

4. All the applicants suffered various injuries during the operation carried out by a large number of gendarmes. Some of them had to be hospitalised with serious injuries which were deemed to be life-threatening. Furthermore, during the operation a hole was opened in the walls of the prison by a digger which then tore off the applicant Mr Saçılık’s left arm from above his elbow. The severed arm was not retrieved by the authorities with a view to preserving and reattaching it, but was left in the rubble. It was later taken from the mouth of a stray dog which had snatched it from the rubble (ibid. §§ 27, 9).

5. Mr Saçılık, who was detained in the prison as a remand prisoner, was taken to hospital on 5 July 2000 and was discharged on 27 July 2000. It was not possible to stitch his arm back on and his injury, which required a healing period of 60 days, was deemed to be life-threatening by the doctors (ibid., § 27).

6. The Court observed in its principal judgment that it had not been provided with any documents or information to show that alternative, non-life-threatening methods of ensuring the inmates’ attendance at the hearing had been considered by the national authorities. Moreover, there was no evidence to suggest that the applicants had used force against the soldiers or, contrary to the Government’s allegations, that they had opened fire on the soldiers. It thus considered that the Government, which bore the burden of providing a plausible explanation for the applicants’ injuries, had failed to prove that those injuries had been caused as a result of the applicants’ own actions (ibid., §§ 93-97 and 106-107).

7. Under Article 41 of the Convention the Court awarded 24 out of the 25 applicants 20,000 euros (EUR) each in respect of non-pecuniary damage. It also awarded the 25 applicants the total sum of EUR 21,000, less the EUR 850 granted by way of legal aid, in respect of their costs and expenses (ibid. §§ 118 and 125 and points 3 and 4 of the operative provisions).

8. In the same judgment the Court observed that the applicant Mr Saçılık had successfully brought an administrative action against the Ministry of the Interior and the Ministry of Justice and obtained compensation in respect of his pecuniary and non-pecuniary damages incurred as a result of the loss of his arm. In accordance with the national procedure, the sums awarded to Mr Saçılık by the first instance court had been paid to him before the appeals lodged by the two Ministries were examined and thus before the first instance court’s decision became final (ibid. §§ 55-57).

9. The Court noted that at the time of adoption of its principal judgment the administrative proceedings were still pending and further noted that if those proceedings were to culminate in a decision in favour of the two Ministries, Mr Saçılık would be required to repay the sums awarded to him. The Court thus considered that the question of the application of Article 41 of the Convention, in so far as it concerned the claims made by Mr Saçılık for pecuniary and non-pecuniary damage, was premature and not ready for decision. Therefore, the Court reserved the said question and invited the Government and Mr Saçılık to inform it about the outcome of the proceedings. The present judgment concerns solely the claims made by the applicant Mr Veli Saçılık under Article 41 of the Convention (ibid. § 112).

10. On various subsequent dates Mr Saçılık, with the assistance of his lawyer, Ms Rahşan Aytaç Sala, submitted information and documents to the Court and kept it informed regarding the developments in the administrative proceedings. The following information appears from those documents.

11. In 2002 Mr Saçılık brought proceedings before the Antalya Administrative Court against the Ministry of Justice and the Ministry of the Interior, claiming 100,000 Turkish liras (TRY, approximately EUR 80,000 at the time) in respect of pecuniary and TRY 50,000 (approximately EUR 40,000) in respect of non-pecuniary damage.

12. In 2004 an expert witness appointed by the Antalya Administrative Court found that Mr Saçılık had sustained pecuniary damages as a result of the injury which had resulted in his inability to work. The pecuniary damage was calculated by that expert as TRY 121,240.

13. In its decision of 31 March 2005 the Antalya Administrative Court concluded that the use of heavy machinery in a prison had been unusual. Even assuming that its use had been necessary, Mr Saçılık had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger. It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger; indeed that would have been most improbable given his state of health at the time. It had also been clear that the driver of the digger had seen Mr Saçılık but had carried on regardless. The Ministries were therefore responsible for the injury caused by the use of disproportionate force.

14. The Administrative Court took account of the above-mentioned expert’s report and noted that Mr Saçılık’s pecuniary damage was in fact higher than the sum claimed by him. However, as the national law did not allow it to make a higher award than what was claimed by Mr Saçılık, it awarded Mr Saçılık the sum claimed by him in full, plus statutory interest, in respect of pecuniary damage. It also awarded Mr Saçılık in full the sum claimed by him in respect of his non-pecuniary damage, namely, TRY 50,000.

15. The Ministries appealed. According to the applicable procedure, appeal proceedings do not affect the execution of first-instance court decisions. Thus, the sums awarded by the Administrative Court and the accumulated interest were paid to Mr Saçılık before the appeal was decided.

16. The appeal lodged by the Ministries was upheld by the Supreme Administrative Court on 15 February 2008 and the decision awarding Mr Saçılık the compensation was quashed. Mr Saçılık’s request for rectification of that decision was rejected by the Supreme Administrative Court on 25 February 2009.

17. Proceedings restarted before another administrative court, namely the Isparta Administrative Court, which decided on 24 June 2010 to reject Mr Saçılık’s claim for compensation. According to the Isparta Administrative Court, Mr Saçılık had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison. Mr Saçılık’s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage. Mr Saçılık appealed.

18. On 26 August 2013 Mr Saçılık informed the Court of the rejection on 26 June 2013 by the Supreme Administrative Court of the appeal lodged by him. He further informed the Court that he had lodged a rectification request against the Supreme Administrative Court’s decision even though that particular remedy was not an effective remedy.

19. On 10 September 2013 the Court invited Mr Saçılık to submit his just satisfaction claims. On the same date it also invited the Government to clarify whether Mr Saçılık would be requested to repay the compensation paid to him already.

20. On 5 October 2013 Mr Saçılık submitted his just satisfaction claims to the Court.

21. On 7 October 2013 the Government informed the Court that the Supreme Administrative Court’s decision of 26 June 2013 was not yet final because the rectification proceedings lodged by Mr Saçılık were still pending. They requested that the Court grant them additional time, until the conclusion of those proceedings, before submitting the information and the documents requested from them.

22. In its letter of 15 October 2013 the Court informed the parties that it had extended the time allowed for submission by the Government of the information requested until the Isparta Administrative Court’s decision of 24 June 2010 became final.

23. On 19 September 2014 Mr Saçılık informed the Court that the rectification request lodged by him had been rejected on 16 July 2014 and that the Isparta Administrative Court’s decision had thus become final. He submitted that he would now be requested to return the compensation paid to him by the two Ministries.

24. On 1 October 2014 the Court asked Mr Saçılık whether, having regard to the length of the time that had elapsed since the submission of his just satisfaction claims on 5 October 2013 (see paragraph 20 above), he wished to update those claims or to maintain them. On the same day it invited the Government to clarify whether Mr Saçılık would be requested to repay the compensation paid to him already.

25. Mr Saçılık replied to the Court’s letter of 1 October 2014 and informed the Court that he wished to maintain the claims he had made on 5 October 2013. The Government did not reply to the Court’s letter of 1 October 2014.

26. On 6 November 2014 Mr Saçılık’s letters and just satisfaction claims were forwarded to the Government who were informed that they could submit any comments which they might wish to make on those claims. The Government were also reminded of their failure to comply with the Court’s request made on 1 October 2014 and urged to submit the requested information and documents.

27. On 5 December 2014 the Government submitted their observations on the claims made by Mr Saçılık. They also submitted a letter, drawn up on 15 October 2014 by the Ministry of Justice and addressed to the Ministry of Finance. In that letter the Ministry of Justice stated that the decision adopted by the Isparta Administrative Court on 24 June 2010 had become final following the rejection of Mr Saçılık’s rectification request on 16 July 2014, and that the proceedings to recover the compensation from Mr Saçılık could now be initiated.

THE LAW

28. 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

1. The parties’ submissions

(a) The applicant Mr Veli Saçılık

29. Mr Saçılık submitted that his pecuniary and non-pecuniary damages had been calculated by the domestic courts on the basis of the reports prepared by medical and other experts according to which the loss of his arm had reduced his capacity by 66%. Thus, the Antalya Administrative Court had awarded him the sums he had claimed for in their entirety, together with legal interest. Subsequently, on 23 December 2005 the Ministry of Justice had paid him the sum of 225,791 Turkish liras (TRY, approximately 141,000 euros (EUR) at the time) and on 6 January 2006 the Ministry of the Interior had paid him the sum of TRY 232,000 (approximately EUR 144,000). From those sums a deduction in the amount of TRY 9,155 (approximately EUR 5,700) had been made for various stamp duties.

30. According to Mr Saçılık, the amount he would now be required to pay back would have increased on account of the accumulation of legal interest. He also submitted to the Court documentary evidence according to which he had paid his legal representative the total sum of TRY 40,339 (approximately EUR 25,000) in the course of the above-mentioned administrative proceedings and claimed that he would now also be required to reimburse the costs and expenses incurred by the two Ministries during the same proceedings which would amount to TRY 55,000 (approximately EUR 20,000). Thus, in respect of the above, Mr Saçılık claimed the total sum of EUR 700,000 for his pecuniary damage.

31. In respect of his claim for non-pecuniary damage Mr Saçılık referred to the Antalya Administrative Court’s decision awarding in full his claim for non-pecuniary damage. He submitted that he would now have to return that sum plus interest to the Ministries.

32. Mr Saçılık also argued that, although he had submitted a copy of the Court’s principal judgment to the Supreme Administrative Court, that court had not taken note of it and had not mentioned it in its decision. Moreover, the national authorities had not only failed to take into account the Court’s findings in its principal judgment, but had brought counter-proceedings against him and his fellow inmates and claimed compensation for the damage caused in the prison during the operation and for the cost of the heavy machinery used during the operation. In his letter of 15 December 2014 Mr Saçılık further informed the Court that the first instance court in the above-mentioned proceedings had decided against them in its decision adopted on 9 December 2014. He argued that they would now be required to reimburse the damage caused in the prison during the operation and that sum would be between TRY 160,000 and 200,000 (approximately EUR 60,000-74,000).

33. Mr Saçılık claimed that, on account of the foregoing and the authorities’ failure to remedy the violations found in the principal judgment, he had suffered and would continue to suffer non-pecuniary damage for which he claimed the total sum of EUR 400,000.

(b) The Government

34. The Government considered the sum claimed by Mr Saçılık in respect of his pecuniary damage to be excessive. They submitted that in 2004 the Antalya Administrative Court had calculated Mr Saçılık’s loss of income stemming from his incapacity to work as TRY 121,240. On 8 December 2005 Mr Saçılık had been paid TRY 225,791 (approximately EUR 141,000) and on 6 October 2006 he had been paid an additional sum of TRY 42,675 (approximately EUR 22,500).

35. The Government also submitted that following the decision of the Supreme Administrative Court rejecting Mr Saçılık’s rectification request, Mr Saçılık would have to repay the above-mentioned sums of money and the legal interest. However, as Mr Saçılık had not yet applied to the national authorities to repay this money, the exact figure could not be calculated.

36. As for Mr Saçılık’s claim for non-pecuniary damage, the Government referred to the principal judgment and submitted that each of the remaining 24 applicants had been paid the sum of EUR 20,000. Thus, the sum claimed by Mr Saçılık in respect of his non-pecuniary damage was excessive.

2. The Court’s assessment

(a) Pecuniary damage

37. The Court reiterates that, according to its established case-law there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that reparation may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20, Series A no. 285-C).

38. To that end, and as set out above, in its principal judgment the Court found that the authorities were liable under Article 3 of the Convention for the life-threatening injury caused to Mr Saçılık, namely the tearing off of his left arm from above his elbow (see paragraph 6 above).

39. The Court thus considers that there is a causal link between the violation found in respect of Mr Saçılık’s injury and his pecuniary damages calculated by the expert and accepted by the Antalya Administrative Court.

40. As set out above, as a result of his injury Mr Saçılık was deemed to have a 66% reduced capacity and his pecuniary damages were assessed by an expert appointed by the Antalya Administrative Court. Taking into account the report prepared by that expert, the Antalya Administrative Court awarded Mr Saçılık the sum claimed by him in full in respect of his pecuniary damage and that sum was paid to him. Although subsequently the decision of the Antalya Administrative Court was quashed and Mr Saçılık’s claim for compensation was rejected, that decision was not taken because he had not suffered any pecuniary damage, but because, unlike the Court, the Isparta Administrative Court and subsequently the Supreme Administrative Court considered that Mr Saçılık had contributed to the incidents in the prison and members of the security forces had had to restore discipline. According to the Isparta Administrative Court, Mr Saçılık’s actions had severed the link of causation between the actions of the security forces and the ensuing damage. The Court observes that the Isparta Administrative Court’s decision was based, to a large extent, on the conclusion reached by the prosecutor in his decision when closing the investigation. The Court disagreed with that decision in its principal judgment (see Saçılık and Others v. Turkey (Merits and partial just satisfaction), nos. 43044/05 and 45001/05, §§ 49-52 and 106-107, 5 July 2011).

41. The decision of the Isparta Administrative Court dismissing the compensation claim was appealed against by Mr Saçılık and, while the appeal proceedings were pending, the Court adopted its principal judgment. Although Mr Saçılık informed the Supreme Administrative Court dealing with the appeal about the Court’s principal judgment, it did not take that judgment into account and did not mention it in its decisions.

42. In this connection the Court also notes that the Government have not sought to argue that Mr Saçılık had not suffered pecuniary damage or that the assessment made by the national expert did not represent the extent of Mr Saçılık’s pecuniary damage, but considered that the sums claimed by Mr Saçılık were excessive (see paragraph 34 above).

43. In the light of the foregoing, the Court considers that Mr Saçılık is entitled to the sums paid to him by the two Ministries in respect of his pecuniary damage stemming from the injury for which, as established in the principal judgment, the Government bore responsibility.

44. In this connection the Court observes that, contrary to what was submitted by the Government, the official documents submitted by Mr Saçılık show that on 23 December 2005 he was paid the sum of TRY 225,791 and on 6 January 2006 the additional sum of TRY 232,000. The Court also notes from the same documents that the total sum of TRY 9,155 was deducted from the two sums in respect of various stamp duties. He was thus paid the total sum of approximately EUR 279,000 by the two Ministries in respect of his pecuniary and non-pecuniary damages.

45. The Court notes that the Ministry of Justice recently ordered its authorities to start proceedings to recover the sums paid to Mr Saçılık (see paragraph 27 above). It also notes that, as explained by the Government, legal interest accrued on those sums of money has not yet been determined. In these circumstances, in which the Court is unable to calculate the exact sum to be awarded to Mr Saçılık, it decides that the Government should renounce any claim for reimbursement of the sum paid to Mr Saçılık in respect of his pecuniary damage and any claim for any additional amounts which may have been incurred by the two Ministries in respect of the costs and expenses in defending themselves in the administrative proceedings brought by Mr Saçılık (see Trévalec v. Belgium (just satisfaction), no. 30812/07, § 27, 25 June 2013). In the event that Mr Saçılık has reimbursed the sum, the Government should pay the same amount to him together with simple interest at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

(b) Non-pecuniary damage

46. The Court observes that Mr Saçılık’s claim for non-pecuniary damage was also awarded in full by the Antalya Administrative Court and that sum was paid to him by the two Ministries. The Court considers the sum awarded to Mr Saçılık in respect of non-pecuniary damage to be sufficient. However, as is the case with his pecuniary damage, he will now be requested to repay the amount paid to him in respect of non-pecuniary damage.

47. The Court considers that its findings above are equally applicable to Mr Saçılık’s claim for non-pecuniary damage and it therefore decides that the Government should renounce any claim for reimbursement of the sum paid to Mr Saçılık in respect of his non-pecuniary damage and any claim for any additional amounts which may have been incurred by the Ministries in respect of the costs and expenses in defending themselves in the administrative proceedings brought by Mr Saçılık. In the event that Mr Saçılık has reimbursed the sum, the Government should pay the same amount to him together with simple interest at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

B. Costs and expenses

48. Mr Saçılık claimed the total sum of EUR 20,000 for the costs and expenses incurred before the Court. In support of his claim he submitted to the Court a time sheet, showing that his legal representative had spent a total of 60 hours in representing him before the Court since the adoption of the principal judgment in 2011. He also claimed that the legal representative had incurred a total of TRY 1,100 (approximately EUR 450) for various other expenses such as translation, postage and travel.

49. In addition to his above-mentioned claim, Mr Saçılık also submitted to the Court a bill showing that he had paid another lawyer who represented him during the compensation proceedings the sum of TRY 40,339 (approximately EUR 25,000). He argued that if that amount could not be taken into account by the Court in calculating his pecuniary damage (see paragraph 30 above), it should be awarded to him under the heading of costs and expenses.

50. The Government considered that Mr Saçılık’s claims for costs and expenses were not supported by documentary evidence and they should be rejected.

51. The Court notes that according to its case-law, if the Court finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of the violation (see Société Colas Est and Others v. France, no. 37971/97, § 56, ECHR 2002-III and the cases cited therein). The Court notes that the compensation proceedings were not brought by Mr Saçılık in order to prevent or to remedy the violation, but to obtain compensation for the damage he had sustained. Thus, the Court rejects the claim made by Mr Saçılık for the fees of the lawyer who represented him in the compensation proceedings.

52. As for Mr Saçılık’s claim for the costs and expenses incurred by him since the adoption of the principal judgment in 2011, and having regard to the documents provided by him in support of that claim, the Court considers it reasonable to award Mr Saçılık EUR 10,000 covering costs under all heads.

C. Default interest

53. 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

1. Holds, unanimously,

(a) that the respondent Government is to renounce, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, any claim for reimbursement of the sum paid to Mr Saçılık in respect of his pecuniary and non-pecuniary damage and any claim for any additional amounts which may have been incurred by the Ministry of Justice and the Ministry of the Interior in respect of the costs and expenses in defending themselves in the administrative proceedings brought by Mr Saçılık; in the event that Mr Saçılık has reimbursed the sums, the Government is to pay the same amount to him, within the said three-month period and together with interest from the date of such reimbursement at the rate specified in sub-paragraph (c) below;

(b) that the respondent State is to pay to Mr Saçılık, within the said three-month period, EUR 10,000 (ten thousand euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to Mr Saçılık;

(c) that from the expiry of the abovementioned 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;

2. Dismisses, by five votes to two, the remainder of Mr Saçılık’ claim for just satisfaction.

Done in English, and notified in writing on 14 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith András Sajó
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó and Lemmens is annexed to this judgment.

A.S.
S.H.N.

ANNEX

List of applicants in application no. 43044/05

	Name	Date of birth	Place of residence
1	Mr Veli Saçılık	1977	Ankara
2	Mr Hüseyin Tiraki	1977	Adana
3	Mr Halil Tiryaki	1959	Vevey, Switzerland
4	Mr Yunis Aydemir	1971	Ankara
5	Mr Yusuf Demir	1957	İstanbul
6	Mr İbrahim Bozay	1956	Malatya
7	Mr Hakan Baran	1971	Ankara
8	Mr Kazım Ceylan	1969	Delémont, Switzerland
9	Mr Hüseyin Bulut	1952	İstanbul
10	Mr Cemil Aksu	1977	Artvin
11	Ms Necla Çomak	1975	Ankara
12	Mr Şahin Geçit	1968	İzmir
13	Mr Hayrullah Kar	1955	Antalya
14	Mr Mehmet Leylek	1959	Malatya
15	Ms Birsen Dermanlı	1971	Austria
16	Mr Veysel Yağan	1967	Germany
17	Mr Fikret Lüle	1972	Ankara
18	Mr Ali Rıza Dermanlı	1969	Greece
19	Mr Cavit Temürtürkan	1974	Basel, Switzerland
20	Ms Azime Arzu Torun	1975	İstanbul
21	Ms Gönül Aslan	1976	Ankara
22	Mr Barış Gönülşen	1974	İzmir
23	Ms Hüsne Davran	1960	Adana
24	Ms Mürüvet Küçük	1970	Tunceli

The applicant in application no. 45001/05

	Name	Date of birth	Place of Residence
	Mr Emre Güneş	1976	Antalya

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You are here: BAILII >> Databases >> European Court of Human Rights >> SACILIK AND OTHERS v. TURKEY - 43044/05 45001/05 - Chamber Judgment [2015] ECHR 377 (14 April 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/377.html Cite as: [2015] ECHR 377