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SECOND
SECTION
CASE OF ELİF KARAKAYA v. TURKEY
(Application
no. 5173/05)
JUDGMENT
STRASBOURG
27
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 Elif Karakaya 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 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5173/05) 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 a Turkish national, Ms Elif
Karakaya (“the applicant”), on 10 January 2005.
- The
applicant was represented by Ms S. Kızılkaya and Mr
İ.H.Altan, lawyers practising in Istanbul. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
28 August 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of compensation
proceedings. It also decided to rule on the admissibility and merits
of this complaint at the same time (Article 29 § 3).
THE FACTS
- On
22 November 1998 the applicant's husband, who was performing his
compulsory military service, died of a heart attack due to a
congenital heart defect, which was diagnosed during the subsequent
autopsy.
- On
19 October 1999 the applicant instituted compensation proceedings
before the Supreme Military Administrative Court (Askeri Yükesek
İdare Mahkemesi). She also requested a retirement pension.
- On
6 January 2000 the Assembly of Chambers of the Supreme Military
Administrative Court (Askeri Yüksek İdare Mahkemesi
Daireler Kurulu) rejected the applicant's claim on the ground
that she had to introduce, pursuant to relevant domestic legislation,
two separate proceedings for each of her claims. On 4 February 2000
the applicant reintroduced her claims separately before the Supreme
Military Administrative Court.
- On
1 March 2000 the Supreme Military Administrative Court issued an
interim decision and inquired whether the applicant had requested
compensation from the Ministry of the Interior before instituting
legal proceedings. With reference to the relevant domestic provisions
and in the absence of such a preliminary request from the
administrative authorities, the court referred the applicant's claim
to the Ministry of the Interior on 29 March 2000.
- In
the meantime the applicant had been paid compensation by the
Gendarmerie General Command (Jandarma Genel Komutanlığı)
of the Ministry of the Interior on 12 February 2000. On an
unspecified date the Ministry of the Interior rejected the
applicant's compensation claim on the ground that she had already
been paid. The applicant was notified of this decision on 24 May
2000.
- Having
thus complied with the preliminary requirement, the applicant
re-introduced her compensation claim before the Supreme Military
Administrative Court on 1 June 2000 and requested the same amounts of
compensation as well as legal aid. By reference to the relevant
provisions and the compensation already paid to the applicant, the
Supreme Military Administrative Court rejected the applicant's
request for legal aid on 28 June 2000.
- On
27 March 2002, the second chamber of the Supreme Military
Administrative Court issued a decision of non-jurisdiction concerning
the applicant's compensation claim on the ground that she was not
military personnel. With reference to the relevant domestic
legislation, the chamber held that the proceedings should have been
instituted before the competent civil administrative court.
- On
7 June 2002 the applicant instituted compensation proceedings before
the Ankara Administrative Court. On 17 July 2003 the Ankara
Administrative Court noted that the issue ought to have been examined
by the Supreme Military Administrative Court due to its military
content and referred the case to the Court of Jurisdictional Disputes
(Uyuşmazlık mahkemesi), which held on 17
November 2003 that the matter fell within the jurisdiction of the
military administrative courts.
- Referring
to the above judgment, the Ankara Administrative Court issued a
decision of non-jurisdiction on 19 December 2003. Consequently the
Supreme Military Administrative Court continued examining the merits
of the case. On 3 May 2004 an expert report regarding the applicant's
possible pecuniary and non-pecuniary damage was submitted to the
Ankara Administrative Court. The applicant objected to the amounts
stated in the expert report.
- On
16 June 2004 the Supreme Military Administrative Court granted the
applicant compensation with statutory interest. This judgment was
delivered to the applicant on 27 July 2004. The applicant did not
seek rectification.
THE LAW
- The
applicant complained that the length of compensation proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention. The Government
contested that argument and maintained that the applicant should have
challenged the non-jurisdiction decision of 27 March 2002, which
would have shortened the period in question. Likewise the applicant
had also failed to challenge the judgment of 16 June 2004, and had
therefore not exhausted domestic remedies.
- The
Court observes that there is currently no legal remedy in Turkish law
for a complaint about the excessive length of proceedings (see
Tamar v. Turkey, no. 15614/02, § 24, 18 July
2006). Therefore an appeal against the judgment of 16 June 2004,
which in the instant case was the last domestic decision delivered,
could not have remedied the applicant's length complaint before the
Court.
The
Court holds 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.
- The
period to be taken into consideration began on 19 October 1999
and ended on 16 June 2004. It thus lasted some 4 years and 8 months
before three different types of courts due to a jurisdictional
conflict, one of the courts being the Court of Jurisdictional
Disputes. All decisions were examined at the first level of the
respective jurisdictions.
- 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).
- Regarding
the Government's submission that the applicant should have challenged
the non-jurisdiction decision of 27 March 2002, which would have
shortened the period in question, the Court notes that this is a
speculative approach. Challenging this decision could also have
extended the proceedings further, considering the fact that the issue
was eventually resolved by the Court of Jurisdictional Disputes. The
applicant simply complied with the non-jurisdiction decision and
instituted her claim before the administrative courts as directed by
the Supreme Military Administrative Court.
- The
Court observes that the applicant instituted the compensation
proceedings on 19 October 1999. However, she had to re-institute her
claim on 4 February and 1 June 2000 respectively as she had failed to
comply with certain procedural legal requirements. Thereby, the Court
finds that the applicant lacked diligence during this period. Thus,
it considers that the period between 19 October 1999 and 1 June 2000
cannot be attributed to the authorities in its assessment of the
delay at issue.
- The
Court further observes that, following the re-institution of the
applicant's claim on 1 June 2000, the Supreme Military Administrative
Court delivered its non-jurisdiction decision on 27 March 2002,
approximately one year and nine months afterwards. Likewise, the
Ankara Administrative Court subsequently delivered its
non-jurisdiction decision on 17 July 2003 - about one year and one
month after the case was brought before it. The Court notes that on
both occasions the decisions were limited to questions of
jurisdiction and not the examination of the applicant's claim on the
merits. The Court finds that the main reason for the length of the
present proceedings was the failure to resolve the jurisdictional
issue efficiently. The delay caused thereby was excessive, in the
Court's view. Once that issue had been determined, the Supreme
Military Administrative Court completed the examination of the
applicant's claim in about six months, a reasonable period which
included the submission of an expert report.
- The
Court emphasises, however, that the subject matter of the litigation
was very important for the applicant, following the death of her
husband, and required special diligence on the part of the domestic
courts.
- In
conclusion, having regard to its case-law on the subject, the Court
considers that in the instant case the delay in resolving the
jurisdiction dispute was excessive and therefore the overall length
of the proceedings failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed a total of 154,754,760 Turkish liras (approximately
73,692,742 euros (EUR)) in respect of pecuniary damage, which
according to the applicant was the remaining amount of compensation,
plus interest, which should have been awarded by the domestic courts.
The applicant left the non-pecuniary damage award to the Court's
discretion and did not submit a claim for costs and expenses. The
Government contested the applicant's claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court however considers that the applicant must have sustained
some non-pecuniary damage in respect of the delay in compensation
proceedings. Ruling on an equitable basis, it awards the applicant
EUR 1,500 under that head. In the absence of any claim concerning
costs and expenses in the present case the
Court further holds that there is no call to
award any sum on that account.
- 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(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 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, 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 amount 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 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
