SECOND SECTION
CASE OF
NURCAN KARA AND OTHERS v. TURKEY
(Application no.
16785/09)
JUDGMENT
STRASBOURG
22 January 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Nurcan Kara and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 16785/09) 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 four
Turkish nationals, Ms Nurcan Kara, Ms Elif Kara, Mr Ersin Kara and Mr Samed
Kara (“the applicants”), on 13 March 2009.
The applicants were
represented by Mr M.S. Bingölballı, a lawyer practising in Bursa. The Turkish Government (“the Government”) were represented by their Agent.
On 2 November 2010 the
application was communicated to the Government.
The Government objected to the examination of the
application by a Committee. After having considered the Government’s objection,
the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1966, 1986, 1988, and
1997 respectively and they live in Edirne.
The applicants are the wife and children of Nejat
Kara who died in a traffic accident which occurred on 17 November 1998. He was
working as an officer within the National Estates Division of the Governorship
of Yalova.
On 12 April 1999 the applicants applied to the Bursa Administrative Court and claimed pecuniary and non-pecuniary damages based
on the allegation that to employ someone who was normally hired for office
work, as a driver was against the relevant legislation.
On 9 February 2000 the Bursa Administrative Court
decided that the case was not within the ambit of administrative judiciary. Upon
that decision the applicant brought a civil case before the Yalova Civil Court
of General Jurisdiction.
On 10 March 2001 the Yalova Civil Court decided
on the case and dismissed it. The applicants appealed that decision.
On 9 May 2002 the 4th Chamber of the
Court of Cassation quashed the decision of the Yalova Civil Court on the ground
that the conflict among the courts who dealt with the case was not a mere
jurisdictional conflict within the same judiciary, it was between the two main
judiciaries as civil and administrative, therefore the decision had to be
appealed before the Court of Jurisdictional Disputes instead of the Court of
Cassation.
Despite that decision the Yalova Civil Court mistakenly
sent the case again to the Court of Cassation.
On 16 March 2004 the Court of Cassation noticed
the mistake and sent the case to the Court of Jurisdictional Disputes.
The Court of Jurisdictional Disputes found that
the case should be heard by the administrative judiciary.
On 9 December 2004 the Bursa 1st Administrative Court, in a fully reasoned decision, dismissed the case.
On 11 February 2008 the Supreme Administrative
Court dismissed the appeal of the applicants.
On 24 October 2008 the Supreme Administrative
Court dismissed the request for rectification.
The Supreme Administrative Court employed in
its last two decisions standard texts of dismissal and did not explain the
grounds of its decisions in detail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants 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 period to be taken into consideration began
on 12 April 1999 and ended on 24 October 2008 by the decision rejecting the
request for rectification. It thus lasted nine years and six months before two
levels of jurisdiction.
The Government contested these arguments.
A. Admissibility
The Court notes that the complaint on the length
of the proceeding 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.
B. Merits
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 applicants and the relevant authorities, and what was
at stake for the applicants in the dispute (see Daneshpayeh v. Turkey, no. 21086/04, 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. Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants further complain under Article 6
of the Convention about the lack of reasoning in the Supreme Administrative
Court decisions. Article 6 of the Convention does not require that an appeal
court, when rejecting an appeal by reference to the reasoning given by a
lower court, accompanies its decision by detailed reasons (see Kabasakal
and Atar v. Turkey, nos. 70084/01 and 70085/01, 19 September 2006). Accordingly, the decision of the Supreme Administrative Court has to be interpreted to have fully accepted the reasoning of
the judgment of the Bursa First Instance
Administrative Court. As such this complaint must
be declared inadmissible as manifestly ill-founded.
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 applicants claimed 50,000 euros (EUR) in
respect of pecuniary and EUR 30,000 in non-pecuniary damage.
The Government contested these 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 applicants EUR 6,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 5,456 for the
costs and expenses incurred before the domestic courts and for those incurred
before the Court. The applicants submitted to Court a receipt for postal costs
which is the only expense documented in the application file.
The Government contested the claim.
Regard being had to the documents in its
possession and to its case-law, the Court rejects the claim for costs and
expenses.
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
1. Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the
respondent State is to pay the applicants, within three months, EUR 6,000
(six thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub
Popović
Deputy Registrar President
