CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 36216/97                       by Nurhan TOSUNBAS                          Gökhan TOSUNBAS                          Okan    TOSUNBAS                       against Turkey          The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 December 1996 by Nurhan TOSUNBAS, Gökhan TOSUNBAS and Okan    TOSUNBAS against Turkey and registered on 24 May 1997 under file No. 36216/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, born in 1960, 1985 and 1989 respectively, are Turkish citizens and resident in Ankara. They are represented before the Commission by Mr Nazim Ata, a lawyer practising in Ankara.        The facts of the present case, as submitted by the applicants, may be summarised as follows.        On 10 August 1990 Tugrul Tosunbas, the husband of the applicant Nurhan Tosunbas and the father of the two other applicants, died in collision with a train while he was crossing a railway in his car.        On 18 October 1990 the applicants brought an action before the Ankara Civil Court of General Jurisdiction against the State Railways Company (Devlet Demiryollari, the DDY). They submitted that a train had crashed into Tugrul Tosunbas's car, as a result of which he had died, the DDY having failed to take the required technical measures at a level crossing (hemzemin geçit). Accordingly, the applicants asked the court to order that a certain amount of pecuniary and non-pecuniary compensation be paid to them by the DDY.        The Ankara Civil Court of General Jurisdiction appointed experts to establish the respective fault of the parties in the accident.        On 12 July 1992 the experts submitted their report to the court stating that 25 % of the fault in the accident was attributable to the DDY, as it had not taken sufficient measures to prevent accidents, and 75 % of the fault to the driver of the car as he had not stopped at the level crossing.        The DDY filed an objection with the court against the conclusion of the experts' report. They submitted that the experts appointed by the court were not experts on railway transportation. Therefore, the court appointed new experts from the istanbul Technical University.        On 20 May 1993 these experts submitted their report to the court. They considered that there was no fault attributable to the DDY and that the driver of the car was 100 % at fault in the accident as he had not stopped at the level crossing.        The applicants filed an objection with the court against the conclusion of the experts. At the applicants' request the court again appointed a commission of experts on transportation from the istanbul Technical University.        On 23 March 1995 the commission of experts submitted a final report to the court. This report also stated that the driver of the car had been 100 % at fault, for the same reasons, and that there was no fault attributable to the DDY.        On 12 June 1995 the Ankara Civil Court of General Jurisdiction, relying on the conclusions of the commission of experts, refused the applicants' request for compensation as the DDY could not be held responsible for the accident. The court also recalled that, in the criminal proceedings instituted against him, the driver of the train had been acquitted by the Kalecik Criminal Court on the ground that no fault was attributable to him.        On 31 August 1995 the applicants lodged an appeal with the Court of Cassation against the judgment of the Ankara Civil Court of General Jurisdiction.        On 10 April 1996 the Court of Cassation dismissed the applicant's appeal. It upheld the judgment of the Ankara Civil Court of General Jurisdiction with its reasoning and assessment of the evidence.        On 13 May 1996 the applicants applied to the Court of Cassation for rectification of its decision.        On 28 June 1996 the Court of Cassation dismissed the applicants' request for rectification.   COMPLAINTS   1.    The applicants complain that the length of the civil proceedings exceeded the reasonable time requirement under Article 6 para. 1 of the Convention.   2.    The applicants further complain under Article 6 para. 1 of the Convention that their right to a fair trial was breached as the national courts refused their request for compensation.   THE LAW   1.    The applicants complain that the length of the civil proceedings exceeded the reasonable time requirement under Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes that the period to be taken into consideration began on 18 October 1990, when the applicants brought an action for compensation before the Ankara Civil Court of General Jurisdiction. The proceedings ended on 28 June 1996, when the Court of Cassation dismissed the applicants' request for rectification of its earlier decision. The proceedings thus lasted 5 years, 8 months and 10 days.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, Eur. Court HR, Vernillo v. Italy judgment of 20 February 1991, Series A no. 198, p.12, para. 30; Monnet v. France judgment of 27 October 1993, Series A no. 273-A, p. 11, para. 27). Furthermore, the Convention organs also consider it   appropriate to make an overall assessment of the length of proceedings in some cases (see e.g. Eur. Court HR, Cifola v. Italy judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).        The Commission also recalls that according to the case-law of the Convention organs, the exercise of the right to a hearing within a reasonable time is subject, in civil cases, to diligence being shown by the party concerned (see Eur. Court HR, Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, p. 14, para. 33). In addition, only delays attributable to the national authorities may justify a finding of failure to comply with the "reasonable time" requirement (see, for example, Eur. Court HR, H v. United Kingdom judgment of 8 July 1987, Series A no. 120-B, p. 59, para. 71).        As to the complexity of the case, the Commission finds that the proceedings before the Ankara Civil Court of General Jurisdiction were not simple. The issue before the court was a relatively complex one as it concerned questions which required technical expertise on railways.        As regards the conduct of the applicants, it appears that they did not object to the appointment of new experts of the opposite party. In fact, they asked themselves for the consultation of yet another expert team when they were dissatisfied with the second expert report. They apparently never complained to the court of the time which the various experts used for preparing their reports. At least part of the delay caused by the consecutive consultation of three expert teams, and in particular the period of one year and ten months between the submission of the second and third expert reports (May 1993-March 1995), is therefore attributable to the applicants themselves.        As regards the conduct of the Turkish authorities, the Commission notes that the applicants' case was dealt with by two levels of jurisdiction and three sets of proceedings over 5 years, 8 months and 10 days.        It is true that the appointment of the first group of experts, who were not specifically experts on railways, by the Ankara Civil Court of General Jurisdiction caused a certain delay as their conclusion was contested by the opposite party. However, the delay caused by this fact was not very substantial, the period between the submission of the first and second reports having been only some ten months (July 1992-May 1993).        Following receipt of the final report drafted by the commission of experts, the Ankara Civil Court of General Jurisdiction dealt speedily with the applicants' action for compensation. The court decided the case on 12 June 1995, that is two months and 20 days after submission of the experts' third report on 23 March 1995.        The Court of Cassation dealt with the case in two sets of proceedings. In particular, following the applicants' appeal on 31 August 1995, the Court of Cassation delivered its decision on 10 April 1996, that is less than eight months later. Furthermore, the Court of Cassation dealt with the applicants' request for rectification of 13 May 1996 already on 28 June 1996, that is one month and 16 days later. Accordingly, there was no unreasonable delay in the Court of Cassation's proceedings.        Looking at the case as whole, the Commission therefore finds that despite the long period spent on the taking of expert evidence, the Turkish courts cannot be deemed responsible for any delay such as to render the length of the proceedings unreasonable within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants further complain under Article 6 para. 1 (Art. 6-1) of the Convention that their right to a fair trial was breached as the national court refused their request for compensation.        The Commission recalls that under Article 19 (Art. 19) of the Convention its sole task is to ensure observance of the engagements undertaken by the High Contracting Parties in the Convention. It is not competent to examine applications concerning errors of law or fact allegedly committed by the competent national authorities, which are competent, in the first place, to interpret and apply domestic law (No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).        In this case, the Commission notes that the applicants' complaints concern the national courts' evaluation of the facts and the evidence and their interpretation of the domestic law. The Ankara Civil Court of General Jurisdiction held, under domestic law and in the particular circumstances of the case, that the DDY (State Railways Company) could not be held responsible for the accident. It therefore refused the applicants' claim for compensation. The Commission finds no evidence or basis on which to conclude that the Ankara Civil Court of General Jurisdiction, in establishing the facts or interpreting the domestic law, acted in an arbitrary or unreasonable manner. In particular, the applicants could put forward their arguments and in fact obtained the consultation of further experts at their request. Therefore, there is no appearance of a violation of the applicants' rights under Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber