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SECOND
SECTION
CASE OF HASEFE v. TURKEY
(Application
no. 25580/03)
JUDGMENT
STRASBOURG
8 January
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 Hasefe 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,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25580/03) 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, Mrs Fatma Süeda
Hasefe, Mrs Ayşe Hülya Hasefe and Mr Haldun Hasefe (“the
applicants”), on 11 June 2003.
- The
applicants were represented by Mr Güney Dinç, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged, in particular, that administrative proceedings
initiated by them to claim compensation from the Ministry of the
Interior had not been concluded within a reasonable time.
- On
2 January 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 1923, 1948 and 1952 respectively and live in
Istanbul.
- The
first applicant is the mother and the remaining two applicants are
the sister and brother of Ms Nilgün Hasefe, who was employed by
Sabancı Holdings in Istanbul. On 9 January 1996 a number of
armed persons raided the Holdings' premises and killed Nilgün
Hasefe and two others.
- On
11 November 1996 the applicants wrote to the Ministry of the Interior
(“the Ministry”) and claimed compensation in accordance
with Article 125 of the Constitution on the ground of the State's
failure to protect Nilgün Hasefe's right to life. The Ministry
rejected the claim on 9 December 1996.
- On
14 February 1997 the applicants filed a compensation claim against
the Ministry before the Istanbul Administrative Court (hereafter “the
Istanbul court”).
- On
14 October 1999 the Istanbul court partly allowed their claims for
compensation and ordered the Ministry to pay certain sums of
compensation to the applicants in respect of pecuniary and
non-pecuniary damage.
- On
9 March 2000 the applicants asked the Ministry to pay them the
amounts of compensation awarded by the Istanbul court.
- The
Ministry appealed against the decision on 22 March 2000 and asked for
an interim injunction suspending the execution of the Istanbul
court's decision. In his written submissions the prosecutor at the
Supreme Administrative Court agreed with the Ministry and requested
that an interim injunction be granted and that the decision of the
Istanbul court be quashed. The prosecutor's written submissions were
not forwarded to the applicants.
- On
18 May 2000 the Supreme Administrative Court granted the injunction
sought by the Ministry and on 6 March 2002 it quashed the Istanbul
court's decision of 14 October 1999.
- The
case was remitted to the Istanbul court, which decided on 31 January
2003 to reach the same conclusion as it had in its decision of
14 October 1999. It ordered the Ministry to pay the same amounts
of compensation to the applicants as those awarded in its previous
decision. The Ministry appealed. The applicants also appealed and
argued that the amounts of compensation ordered by the Istanbul court
were no longer satisfactory owing to the low rates of interest.
- On
14 April 2005 the Supreme Administrative Court's General Council of
the Administrative Chambers (Danıştay İdari Dava
Daireleri Genel Kurulu) dismissed the Ministry's appeal and
accepted the applicants' claims for higher rates of interest in
respect of non-pecuniary damage.
- A
request by the Ministry for rectification of the Istanbul court's
decision of 31 January 2003 was rejected on 16 March 2006.
- On
31 October 2006 the Istanbul court adopted a decision in line with
the decision of the Supreme Administrative Court's General Council of
the Administrative Chambers in so far as it concerned the rates of
interest for non-pecuniary damage, and awarded compensation to the
applicants. On 2 March 2007 the Ministry appealed against the
decision. According to the information provided by the Government,
the appeal proceedings are still pending.
- On
10 December 2007 the Ministry paid the applicants the amounts of
compensation awarded by the Istanbul court in its decision of 14
October 1999 and the interest awarded in the same court's decision of
31 October 2006. The total sum paid to the three applicants was
63,080 new Turkish liras (TRY – approximately 37,000 euros
(EUR) at the time).
II. RELEVANT DOMESTIC LAW AND PROCEDURE
- Article
13 of the Code of Administrative Procedure provides that anyone who
has suffered damage as a result of an act committed by the
administrative authorities may claim compensation from the
authorities within one year of the alleged act. The victim must first
apply to the relevant administrative entity and claim compensation
for the damage before he or she can lodge a compensation claim in the
administrative courts. If this claim is dismissed in whole or in part
or if no reply is received within sixty days, the victim may bring
administrative proceedings.
- Article
28 of the Code of Administrative Procedure provides:
“(1) The authorities shall be obliged
to adopt a decision without delay or to take action in accordance
with the decisions on the merits or a request for a stay of execution
issued by the Supreme Administrative Court, the ordinary or regional
administrative courts or the courts dealing with tax disputes. Under
no circumstances may the time taken to act exceed thirty days
following service of the decision on the authorities.
...
(3) Where the authorities do not adopt a
decision or do not act in accordance with a decision by the Supreme
Administrative Court, the ordinary or regional administrative courts
or the tax courts, a claim for compensation for pecuniary or
non-pecuniary damage may be brought before the Supreme Administrative
Court and the relevant courts against the authorities.
(4) In the event of deliberate failure on the
part of civil servants to enforce judicial decisions within the
thirty days [following the decision], compensation proceedings may be
brought both against the authorities and against the civil servant
who refuses to enforce the decision in question.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- Relying
on Article 6 of the Convention, the applicants complained that the
administrative proceedings had not been concluded within a reasonable
time. Under the same Article, they further complained that the
prosecutor's written submissions had not been communicated to them
(see paragraph 11 above). Article 6 § 1 of the Convention, in so
far as relevant, reads 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 ...”
- The
Government contested that argument.
A. Admissibility
1. Complaint concerning the non-communication of the
prosecutor's observations
- The
Court observes that the proceedings are still continuing before the
Supreme Administrative Court. It follows that the complaint is
premature and should be rejected for non-exhaustion of domestic
remedies within the meaning of Article 35 §§ 1 and 4 of the
Convention.
2. Complaint concerning the length of the proceedings
- 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
- In
the opinion of the applicants the proceedings began on 11 November
1996, when they applied to the Ministry, and were concluded on 10
December 2007, when they were paid the amounts of compensation.
- The
Government considered that the length of the proceedings was
justified on account of the complexity of the case.
- The
Court notes that, by 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 “Relevant domestic law
and procedure” above). In other words, claiming compensation
directly from the administration is a compulsory precondition for
bringing administrative proceedings. In the present case the
applicants complied with this requirement on 11 November 1996 (see
paragraph 7 above). It follows that, for the purposes of the
reasonable-time complaint, the proceedings in question began on
11 November 1996.
- Although
the proceedings are still continuing before the Court of Cassation
(see paragraph 16 above), the applicants have not complained about
the period after the payment of the amounts of compensation on
10 December 2007 (see paragraph 17 above). It follows that the
proceedings for the purposes of the Court's examination continued for
a period of 11 years and one month before three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in light of the circumstances of the case.
Particular regard must be had to the complexity of the case and 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).
- Even
assuming the proceedings in the present case to be complex, the Court
is not convinced that they were conducted diligently. In this
connection the Court observes that it took the Supreme Administrative
Court almost two years to decide the first appeal lodged by the
Ministry (see paragraphs 11-12 above). The Supreme Administrative
Court's General Council of the Administrative Chambers, for its part,
took a period in excess of two years to decide the appeals lodged by
the parties (see paragraph 14 above). In the absence of any
explanation from the Government, these delays must be considered to
be attributable to the Supreme Administrative Court's handling of the
appeal proceedings.
- In
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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Relying
on Article 13 of the Convention, the applicants argued that they had
had no remedies by which to challenge the Ministry's failure to pay
them the amounts of compensation awarded by the Istanbul court on
14 October 1999 and 31 January 2003. Article 13 of the
Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument and submitted that the amounts of
compensation had been paid to the applicants.
- The Court considers it appropriate to examine this
complaint solely from the standpoint of Article 6 § 1 of the
Convention, of which the execution of a final and binding domestic
court judgment is an integral part (see Hornsby v. Greece,
19 March 1997, § 40, Reports of Judgments and Decisions
1997-II).
- The
Court notes that, in accordance with Article 28 of the Code of
Administrative Procedure (see “Relevant domestic law and
procedure” above), the Ministry was under an obligation to
comply with the decision of the Istanbul court even though that
decision is currently being examined on appeal and is thus not final.
The Ministry has thus paid the applicants the sums awarded by the
Istanbul court.
- 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, as
pointed out above, the appeal proceedings are still pending and the
decision in which the applicants were awarded compensation is not yet
final. It follows that the respondent Government have not failed in
their obligation under Article 6 of the Court.
- This
complaint is therefore manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Lastly,
the applicants complained about the Istanbul court's failure to apply
interest to the amounts of compensation awarded in its decision of 31
January 2003. They relied on Article 1 of Protocol No. 1 to the
Convention, the relevant part of which provides:
“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.
...”
- It
is to be observed at the outset that the applicants made this
complaint in their application form submitted to the Court 11 June
2003 (see paragraph 1 above), that is, before the decision of 31
January 2003 was quashed by the Supreme Administrative Court's
General Council of the Administrative Chambers on 14 April 2005. The
applicants did not maintain the complaint in their subsequent
submissions to the Court.
- In
any event, it is to be noted that in its decision of 31 October 2006
the Istanbul court allowed the applicants' claims and decided that
interest should be applicable to the amounts of compensation awarded
to them. The amounts paid to the applicants on 10 December 2007
included the interest.
- Consequently,
this part of the application should also be rejected as being
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
IV. 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
applicants claimed 53,826.88 pounds sterling (GBP –
approximately EUR 69,000) in respect of pecuniary damage and
GBP 40,000 (approximately EUR 51,000) in respect of
non-pecuniary damage.
- The
Government contested the claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
On the other hand, it awards each applicant EUR 6,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed a total of TRY 9,140 (approximately EUR 4,500)
for the costs and expenses incurred before the domestic courts and
before the Court.
- This sum included TRY 4,140 in respect of the fees of
their lawyer, in support of which they referred to the Turkish Bar
Association's scale of fees.
- The
remaining sum of TRY 5,000 was claimed in respect of domestic court
fees and postal expenses. Nevertheless, the applicants submitted that
they were only able to support some of these expenses with
documentary evidence. Thus, they submitted bills showing that the
amount of TRY 389 (approximately EUR 190) had been spent in respect
of domestic court fees and postal expenses.
- The
Government were of the opinion that the claims were not supported
with adequate evidence, and invited the Court to reject them.
- According
to the Court's case-law, an applicant is entitled to 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, the applicants have not substantiated
that they have actually incurred the costs claimed. In particular, in
support of their claim for the fees of their lawyer, they failed to
submit documentary evidence, such as a contract, a fee agreement or a
breakdown of the hours spent by their lawyer on the case.
Accordingly, the Court makes no award in respect of the fees of their
lawyer.
- Concerning
the claim in respect of the remaining costs and expenses, the Court
considers it reasonable to award the applicants, jointly, the sum of
EUR 500.
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 length of
the proceedings 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 applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into the national currency of the respondent
State, at the rate applicable at the date of settlement, plus any tax
that may be chargeable to the applicants:
(i) EUR
6,000 (six thousand euros) to each applicant in respect of
non-pecuniary damage; and
(ii) EUR
500 (five hundred euros) to the three applicants jointly 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
