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SECOND
SECTION
CASE OF ALKIN v. TURKEY
(Application
no. 75588/01)
JUDGMENT
STRASBOURG
13
October 2009
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 Alkın v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75588/01) 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, Miss Behice Alkın
(“the applicant”), on 5 October 2001.
- The
applicant, who had been granted legal aid, was represented by
Mr Tahir Elçi, a lawyer practising in Diyarbakır.
The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged, in particular, that the respondent State had acted
in breach of its obligation under Article 2 of the Convention by
failing to prevent her from being harmed by a landmine laid by
soldiers. Relying on Article 6 of the Convention and Article 1 of
Protocol No. 1 to the Convention she also alleged that the
proceedings instigated by her in order to obtain compensation from
the State had not been completed within a reasonable time and that
the State had delayed execution of the domestic court decision in
which she had been awarded compensation.
- On
21 November 2005 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
applicant, Behice Alkın, is a Turkish national who was born in
1985 and lives in Şırnak. At the time of the events she was
eleven years old and lived in Ortabağ village, which is located
within the administrative province of Şırnak.
- 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
13 May 1996 the applicant – who was 11 years old at the time –
was playing with other children in the meadows near her village when
she stepped on a landmine. According to a document drawn up by the
soldiers, a few minutes prior to the events a gendarme soldier from
the nearby Ortabağ gendarmerie station had told the children to
leave the area, and the applicant had stepped on the mine as she was
leaving the area.
- She
was airlifted to Şırnak Military Hospital in a military
helicopter and subsequently to Diyarbakır Military Hospital.
According to a medical report prepared by Diyarbakır Military
Hospital on 22 August 1996, the applicant's left leg was amputated
from the knee. As the family lacked the necessary funds, the social
services provided the applicant with a prosthetic leg.
B. The criminal investigation
- The
applicant's father made a statement to the gendarmerie on 19 May
1996 and stated that the incident had been an accident and that he
did not want to press charges against anyone. In her statement of
4 June 1996 the applicant also stated that she did not want
bring any complaints in connection with the incident, which had been
an accident.
- On
an unspecified date the public prosecutor's office in the nearby town
of Uludere initiated an investigation of its own motion into the
circumstances of the incident. On 27 June 1996 the file was
transferred to the Uludere district administrative council for the
necessary authorisation to continue with the investigation.
- On
14 August 1997 the Uludere district administrative council declined
the authorisation sought by the prosecutor. It found that, despite
the soldier's warning, the applicant had crossed the minefield and
that therefore there had been no intention or fault on the part of
the soldiers.
- On
4 December 1997 the Diyarbakır Regional Administrative Court
examined, of its own motion, the decision of the Uludere District
Administrative Court and upheld it.
- According
to the applicant, neither the decision of 14 August 1997 nor the
judgment of 4 December 1997 was communicated to her or her family and
they only became aware of these decisions in 2004.
C. Compensation proceedings
- On
26 March 1997 the applicant's parents, acting as her legal guardians,
filed a petition with the Ministry of the Interior (hereinafter “the
Ministry”) requesting compensation for pecuniary and
non-pecuniary damage on account of the injury sustained by the
applicant. On 5 June 1997 the Ministry informed them that they would
not pay her compensation in the absence of a judicial decision.
- On
16 June 1997 the lawyer representing the applicant's parents (“the
family”) filed an action for compensation against the Ministry
before the Diyarbakır Administrative Court. In their petition,
the family claimed that the State had been responsible for the injury
sustained by the applicant. In any event, in accordance with the
case-law of the Supreme Administrative Court, the State should bear
responsibility for her injury in accordance with the “social
risk principle” even if no fault was established on the part of
the Ministry. They requested the court to award them
6,000,000,000 Turkish liras (TRL) for pecuniary damage and
TRL 1,000,000,000 for non pecuniary damage.
- The
Ministry and the family submitted their observations on the merits of
the case on 13 August and 15 September 1997 respectively. In 1998 and
1999 the Administrative Court was provided with the criminal
investigation file.
- On
26 April 2000, with the assistance of their lawyer, the family sent a
letter to the Diyarbakır Administrative Court complaining about
that court's failure to make any progress in its examination of the
case in the previous three years. They drew the Administrative
Court's attention to the financial problems they had been
experiencing and stated that the court fees they had to pay had
exacerbated those problems. They asked the court to expedite the
proceedings.
- On
27 April 2000 the Diyarbakır Administrative Court appointed an
expert to calculate the amount of pecuniary damage sustained by the
applicant. The expert submitted his report to the court on 17 October
2000. According to the report, the pecuniary damage sustained by the
applicant amounted to TRL 13,522,992,551.
- On
21 December 2000 the Diyarbakır Administrative Court awarded the
family the totality of the sum requested by them. In its decision the
Administrative Court held that the injury to the applicant had been
caused as a result of the explosion of a landmine which had been laid
by the security forces and, as such, the State had to compensate her
for the damage sustained by her. The Administrative Court based its
decision on the doctrine of “social risk”, which did not
require the establishment of any causal link between the wrongful act
and the damage, and considered that the burden of the damage caused
in the fight against terrorism should be shared by society as a whole
in accordance with the principles of “justice” and “the
social State”.
- The
Ministry appealed against the decision on 2 May 2001.
- The
applicant applied to the office responsible for the execution of
judgments and successfully requested an order for payment of the
compensation to be issued against the Ministry. When the Ministry
failed to comply with a payment order issued on 21 June 2001 and
failed to ask for additional time, the office responsible for the
execution of judgments called on the Ministry on 6 June 2002 to
comply with the order.
- On
25 February 2003 the Supreme Administrative Court dismissed the
appeal lodged by the Ministry. It considered that, although there was
a causal link between the laying of the landmines by the soldiers and
the damage caused to the applicant, the authorities had not been at
fault. As such, the awarding of damages by the Administrative Court
on the basis of the “social risk principle” had been the
right course of action. The Supreme Administrative Court's decision
was served on the Ministry on 11 June 2003.
- On
1 July 2003 the Ministry paid the applicant the sum of
TRL 27,330,800,000 (approximately 17,000 euros (EUR) at the
time).
- The
authorities subsequently informed the Ministry that the sum paid on 1
July 2003 did not correspond to the actual debt and that an
additional TRL 1,483,874,000 (approximately EUR 900) was still
due to the applicant. On 12 October 2004 the Ministry's bank
transferred this sum to the bank account specified by the office
responsible for the execution of judgments. However, as neither the
name of the recipient nor any reference number was written on the
transfer documents, the bank was unable to inform the applicant. The
money was finally paid to the applicant's lawyer on 2 November
2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that the authorities had failed to take adequate
precautions to prevent her from being harmed by the landmine and that
they had also failed to conduct an effective investigation into the
circumstances of the incident. Article 2 of the Convention, in so far
as relevant, reads as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
...”
- The
Government contested that argument.
- The
Government argued that the complaint was inadmissible on account of
the applicant's failure to observe the six-month rule. They
considered that the applicant should have introduced her application
to the Court within six months from the Diyarbakır Regional
Administrative Court's decision of 4 December 1997.
- The
applicant maintained that the Diyarbakır Administrative Court's
decision had not been communicated to her. She also argued that it
had been impossible for her, having just lost her leg and being only
11 years of age at the time, to make an official complaint against
the soldiers.
- The
Court notes at the outset that the Government did not challenge the
applicability of Article 2 of the Convention. In any event, the Court
considers that the fact that the applicant fortuitously survived the
explosion does not prevent the Court from examining the complaint
under Article 2 of the Convention, since the laying of the landmine
and its subsequent explosion were potentially lethal and put her life
at risk (see, mutatis mutandis, Makaratzis v. Greece [GC],
no. 50385/99, §§ 52 and 55, ECHR 2004 XI; Osman
v. the United Kingdom, 28 October 1998, §§ 115 122,
Reports of Judgments and Decisions 1998 VIII; and Yaşa
v. Turkey, 2 September 1998, §§ 92-108,
Reports 1998 VI).
- The
Court also notes that it is not disputed between the parties that the
landmine which caused the applicant's injury had been laid by the
military forces of the respondent Government. Thus, the Court
considers that the laying of such indiscriminate and inhumane weapons
as anti-personnel landmines, which affect the lives of a
disproportionate number of civilians and children, amounts to
intentional use of lethal force and, as such, the applicable
principles in the present case are those developed in the Court's
case-law concerning the negative obligation under Article 2 of the
Convention.
- In
that context, breaches of the right to life cannot be remedied
exclusively through an award of compensation to the relatives of the
victim (see Nikolova and Velichkova v. Bulgaria, no. 7888/03,
§§ 56 57, 20 December 2007; Leonidis
v. Greece, no. 43326/05, §§
46-48, 8 January 2009; and Amaç and Okkan v.
Turkey, nos. 54179/00 and 54176/00, §§ 32 and 35,
20 November 2007).
- It
follows, therefore, that the relevant domestic remedy for the
applicant's complaint which would have had the potential to offer
adequate redress was the criminal investigation which, however, was
concluded on 4 December 1997, that is, more than six months
before the introduction of the application (see paragraph 12 above).
- The
Court considers that the administrative proceedings by which the
applicant sought to obtain compensation do not affect the running of
the six-month period. It notes that the applicant was awarded
compensation on the basis of the “social risk principle”,
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. The Court has
repeatedly refused to accept the effectiveness of this no-fault based
compensation procedure in Article 2 cases (see, most recently, Bedir
v. Turkey (dec.), no. 25070/02, 2 October 2007 and the cases
cited therein) on the ground that it does not lead to the
identification and punishment of those responsible.
- As
for the applicant's argument that she did not become aware of the
conclusion of the criminal proceedings until 2004 (see paragraph 13
above), the Court notes that in 1997, when the criminal investigation
was still continuing, the applicant and her family were represented
in the compensation proceedings by a lawyer who could have made
enquiries, found out about the criminal investigation and advised his
clients to lodge their application with the Court within six months
from its conclusion. Moreover, the criminal investigation file was in
the possession of the Diyarbakır Administrative Court, to which
the applicant and her lawyer were able to have access (see paragraph
16 above). Nevertheless, it does
not appear that due diligence was shown by the applicant, her family
or by her lawyer in informing themselves about the existence or the
outcome of the criminal investigation (see, mutatis
mutandis, Seyithan
Aydın v. Turkey,
(dec.), no. 71998/01, 4 March 2008).
- In
the light of the foregoing the Court considers that the applicant has
failed to comply with the six-month rule in respect of her complaint
under Article 2 of the Convention. This aspect of the case must
therefore be rejected pursuant to Article 35 §§ 1 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- In
her letter sent to the Court on 16 May 2005 the applicant relied, for
the first time, on Articles 3 and 13 of the Convention.
- The
Government contested the complaints.
- The
Court notes that these complaints were not introduced until 2005,
that is, more than six months after the conclusion of the domestic
proceedings. It follows that these complaints must also be rejected,
pursuant to Article 35 §§ 1 and 4 of the Convention, for
non-compliance with the six-month rule.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
- The
applicant complained that the administrative proceedings had not been
completed within a reasonable time, contrary to Article 6 of the
Convention.
“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 the complaint.
A. Admissibility
- 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. It must
therefore be declared admissible.
B. Merits
- The
applicant complained that the length of the administrative
proceedings had been in breach of the reasonable-time requirement of
Article 6 § 1 of the Convention.
- In
the opinion of the Government, there had not been any inordinate
delays in the course of the proceedings which, in fact, had been
completed within a reasonable time.
- The
Court notes that, pursuant to Article 13 of the Code of
Administrative Procedure, persons who have sustained damage as a
result of an administrative act have to apply to the administrative
entity concerned and claim compensation for the damage they have
sustained before they can lodge a compensation claim in the
administrative courts in respect of such damage (see Hasefe
v. Turkey, no. 25580/03, §
26, 8 January 2009). In other words, claiming compensation directly
from the authorities is a compulsory precondition for bringing
administrative proceedings. In the present case the applicant
complied with this requirement on 26 March 1997 (see paragraph 14
above). It follows that, for the purposes of the reasonable-time
complaint, the proceedings in question began on 26 March 1997. They
ended when the Supreme Administrative Court dismissed the Ministry's
appeal on 25 February 2003. They thus lasted for almost six years
before two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case.
Particular regard must be had to the complexity of the case, the
conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II) and what is at
stake for the applicant (see Kudła v. Poland [GC],
no. 30210/96, § 124, ECHR 2000 XI)
- Having
particular regard to the fact that the examination of the case by the
domestic courts was largely restricted to ascertaining whether the
conditions for the applicability of the “social risk principle”
obtained in the case before them, and not to examining in detail the
military authorities' alleged negligence in the explosion, the Court
does not consider the subject matter of the case to be complex. On
the other hand, having regard to the financial difficulties
experienced by the applicant and her family, which were brought to
the attention of the domestic courts (see paragraph 17 above),
the Court considers that the subject matter of the case was important
for the applicant.
- Despite
this fact, which was not disputed by the Government, the proceedings
do not appear to have been conducted with due diligence. In this
connection the Court observes that, beyond requesting and obtaining
the parties' observations and the criminal investigation file (see
paragraph 16 above), no meaningful action appears to have been
taken by the Diyarbakır Administrative Court in the course of
the first three years. Furthermore, it took the Supreme
Administrative Court almost two years to decide on the appeal lodged
by the Ministry (see paragraphs 20 and 22 above). In the absence of
any convincing explanations from the Government, these delays must be
considered to be attributable to the domestic courts.
- In
the light of the foregoing, the Court holds 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.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF
THE DECISION OF 21 DECEMBER 2000
- The
applicant complained that the authorities had failed to pay her the
sum awarded by the Administrative Court in its decision of
21 December 2000 for a long period, during which the annual rate
of inflation in Turkey had been very high. The relevant parts of the
provisions in question read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law...”
- The
Government contested the applicant's arguments. They drew the Court's
attention to the fact that the Supreme Administrative Court's
decision had been served on the Ministry on 11 June 2003 and that the
Ministry had paid the compensation to the applicant on 1 July 2003.
- According to the Court's case-law, Article 6 § 1
of the Convention requires the implementation of final and binding
judicial decisions which, in States that accept the rule of law,
cannot remain inoperative to the detriment of one party. Accordingly,
the execution of a judicial decision cannot be prevented, invalidated
or unduly delayed (see, among other authorities, Hornsby v.
Greece, 19 March 1997, § 40, Reports 1997 II,
and Burdov v. Russia, no. 59498/00, §§ 34-35,
ECHR 2002 III).
- The
Court notes that, in accordance with Article 28 of the Code of
Administrative Procedure (see Hasefe, cited above, §§
18-19), the Ministry was under an obligation to comply with the
decision of the Diyarbakır Administrative Court even before that
decision was examined on appeal and became final.
- Nevertheless,
according to the Court's established case-law (see, in particular,
Hornsby, cited above, § 40), the Contracting States'
obligation to execute the decisions of their domestic courts extends
only to those which are “final and binding”. In the
present case, the applicant complained about the non-execution of the
Diyarbakır Administrative Court's decision before it became
final. As pointed out by the Government, the Ministry paid the
compensation to the applicant some three weeks after the decision of
the Supreme Administrative Court was served on them (see
paragraphs 22 23 above). It follows that the respondent
Government have not failed in their obligations under Article 6 of
the Convention.
- Similarly,
the compensation awarded in the Diyarbakır Administrative
Court's decision cannot be regarded as a “possession”
within the meaning of Article 1 of Protocol No. 1 to the Convention
before the Supreme Administrative Court examined the appeal lodged
against that decision. As pointed out above, the Ministry paid the
compensation to the applicant three weeks after the decision of the
Supreme Administrative Court was served on them.
- In
view of the above, the Court concludes that these complaints in their
entirety should be rejected as being manifestly ill-founded, pursuant
to Article 35 §§ 3 and 4 of the Convention.
V. 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 60,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested those claims.
- 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, it awards the applicant EUR 4,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,400 for the costs and expenses incurred
before the domestic courts and EUR 2,700 for those incurred before
the Court. In support of her claim under this head the applicant
submitted to the Court a breakdown of the hours spent by her legal
representative on the case.
- The
Government argued that the applicant's claims for costs and expenses
were unsubstantiated.
- According to the Court's case-law, 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 were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
2,000 covering costs under all heads, less the EUR 850 which the
applicant received in legal aid from the Council of Europe (see
paragraph 2 above).
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
- Declares by a majority of six votes to one the
complaint under Article 6 of the Convention concerning the
length of the administrative proceedings admissible and the remainder
of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
excessive length of the proceedings;
- Holds unanimously
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 2,000 (two thousand
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses, less EUR 850 (eight hundred and
fifty euros) granted by way of legal aid, to be converted into
Turkish liras at the rate applicable at the date of settlement;
(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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
