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CASE OF NURCAN KARA AND OTHERS v. TURKEY - 22 January 2013

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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

1. 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.
2. The applicants were represented by Mr M.S. Bingölballı, a lawyer practising in Bursa. 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 1966, 1986, 1988, and 1997 respectively and they live in Edirne.
6. 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.
7. 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.
8. 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.
9. On 10 March 2001 the Yalova Civil Court decided on the case and dismissed it. The applicants appealed that decision.
10. 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.
11. Despite that decision the Yalova Civil Court mistakenly sent the case again to the Court of Cassation.
12. On 16 March 2004 the Court of Cassation noticed the mistake and sent the case to the Court of Jurisdictional Disputes.
13. The Court of Jurisdictional Disputes found that the case should be heard by the administrative judiciary.
14. On 9 December 2004 the Bursa 1st Administrative Court, in a fully reasoned decision, dismissed the case.
15. On 11 February 2008 the Supreme Administrative Court dismissed the appeal of the applicants.
16. On 24 October 2008 the Supreme Administrative Court dismissed the request for rectification.
17. 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

18. 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...”

19. 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.
20. The Government contested these arguments.
A. Admissibility

21. 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

22. 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).
23. 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

24. 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

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 50,000 euros (EUR) in respect of pecuniary and EUR 30,000 in 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 6,000 in respect of non‑pecuniary damage.
B. Costs and expenses

29. 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.
30. The Government contested the claim.
31. 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

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 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