CASE OF ERKIZAN v. TURKEY - 22 January 2013

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CASE OF ERKIZAN v. TURKEY - 22 January 2013

Mesaj gönderen adalethukuk » 25 Oca 2013 14:04

CASE OF ERKIZAN v. TURKEY

(Application no. 17074/09)

JUDGMENT

STRASBOURG

22 January 2013

This judgment is final but it may be subject to editorial revision.

In the case of Erkızan 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

1. The case originated in an application (no. 17074/09) 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 three Turkish nationals, Ms Fatma Erkızan, Mr Hakkı Bolkan Erkızan and Mr Haydar Burak Erkızan (“the applicants”), on 6 March 2009.
2. The applicants were represented by Ms N. Şimşek, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3. On 2 November 2010 the application was communicated to the Government.
4. 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

5. The applicants were born in 1962, 1989 and 1990 respectively and live in Izmir.
6. The applicants are the wife and sons of Ahmet Celil Erkızan who died in a ship wreck on 2 May 1994.
7. On 11 January 1995 the applicants brought a civil case before the Milas Civil Court of General Jurisdiction in request of pecuniary and non pecuniary damages.
8. On 3 November 2003 the Civil Court partially awarded their requests for damages.
9. On 1 July 2004 the Court of Cassation quashed the judgment based on the fact that the case was within the jurisdiction of labour courts.
10. Upon that decision the Milas Labour Court began to hear the case.
11. On 21 February 2006 the Court of Cassation quashed the decision of the Labour Court which admitted the case of the applicants again.
12. On 16 July 2007 the Labour Court following the quashing decision of the Court of Cassation admitted the case partially.
13. On 8 July 2008 the Court of Cassation upheld the decision.
14. On 10 September 2008 the final decision was served to the applicants.
THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15. 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...”

16. The Government contested that argument.
17. The period to be taken into consideration began on 11 January 1995 and ended on 10 September 2008. It thus lasted thirteen years and eight months before two levels of jurisdiction.
A. Admissibility

18. The Court notes that this complaint 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

19. 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 Daneshpayeh v. Turkey, no. 21086/04, 16 July 2009).
20. 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.
21. There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION

22. The applicants also complained of the unfairness of the amount decided as compensation for damages at the end of the judicial proceedings.
23. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001‑II). It also reiterates that it is not its task to review the assessment of evidence by a national court, unless it is arbitrary or manifestly unreasonable (see Camilleri v. Malta (dec.), no. 51760/99, 16 March 2000).
24. As the complaint in fact only concerns the unfavourable outcome of the proceedings , the Court notes that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be declared inadmissible.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25. 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

26. The applicants claimed 30,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.
27. The Government contested these claims.
28. 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 9,600 in respect of non‑pecuniary damage.
B. Costs and expenses

29. The applicants also claimed EUR 7,000 for costs and expenses. The amount requested covers the lawyer’s fees paid in the domestic proceedings and the proceeding before the Court, and postal costs.
30. The Government contested these claims.
31. The Court notes that the expenditures before the domestic court were not supported by proper documents while the lawyer’s fee for application to the Court was documented by signed vouchers. The amount requested for translation was not necessary. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant, EUR 2,500 in respect of costs and expenses.
C. Default interest

32. 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 length 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, the following amounts:
(i) EUR 9,600 (nine thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable to the applicants, 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;

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 Popovic
Deputy Registrar President



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