UYAR v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
1. A list of the applicants is set out in the appendix. 3. On 2 December 2002 the applicants’ son and brother respectively, Utku Uyar, was killed in a traffic accident when the car he was driving collided with a bulldozer at approximately 2.30 p.m. in the afternoon. The bulldozer was being used for road works by the General Directorate of Highways (Karayolları Genel Müdürlüğü). An autopsy performed on the victim’s body on 3 December 2002 confirmed that he had died as a result of bodily traumas sustained in the crash. 4. Shortly after the accident, three gendarme officers went to the site of the crash to prepare an incident report. They noted, inter alia, that no signs had been placed on the road to warn drivers about the road works, a fact confirmed by the driver of the bulldozer. According to a map sketched by the gendarme officers, the car driven by Utku Uyar had hit the bulldozer on the rear left side, while the bulldozer was parked on an unpaved area on the right side of the main road. 5. According to witness statements obtained by the gendarmerie on 2 December 2002, the rear of the bulldozer had protruded approximately one and a half metres onto the main road at the time of the collision. However, it had been moved to the side of the road immediately after the accident, prior to the arrival of the gendarmerie at the site of the crash. 6. A couple of hours after the accident gendarme officers questioned the driver of the bulldozer, B.T. He stated that he had been operating the bulldozer on the unpaved area next to the main road when Utku Uyar’s car had crashed into it. He denied any responsibility for the accident. 7. On 3 December 2002 B.T. was taken to the Sultanhisar public prosecutor to make a statement. Repeating his earlier words to the gendarmerie, B.T. insisted that the bulldozer had been completely off the main road at the time of the accident, and that he had no idea how the collision had occurred. He also stated that there had been some signs about 700-800 metres from the place of the crash showing road works. He made the same statement before the Sultanhisar Magistrates’ Court later the same day. 8. On 9 December 2002 the Sultanhisar public prosecutor interviewed an eyewitness, A.E.H., who stated that at the time of the incident the bulldozer had occupied almost half the main road and that just before the crash another accident had been avoided when a lorry had managed to steer around the bulldozer at the last minute. The witness stated that he had warned an engineer overseeing the road works that someone holding a flag was needed to redirect the traffic. 9. On 12 December 2002 the Sultanhisar public prosecutor filed a bill of indictment with the Sultanhisar Criminal Court of First Instance (“the Sultanhisar Criminal Court” or “the trial court”) against B.T., charging him with causing death through negligence under Article 455 § 1 of the Criminal Code in force at the material time. 10. On 13 December 2002 the Sultanhisar Criminal Court began hearing the case. 11. On an unspecified date the first applicant joined the proceedings as a civil party. 12. On 7 January 2003 the trial court carried out an on-site inspection of the place of the accident. The inspection included a gendarmerie expert, the defendant and eight witnesses. The expert carried out measurements on the bulldozer and the unpaved road it had been working on, as well as on the main road. Only one of the witnesses, A.E.H., who had previously been interviewed by the public prosecutor, had seen the accident happen. The remaining witnesses made contradictory statements about the location of the crash. Some of them stated that the victim’s car had crashed into the bulldozer on the shoulder between the main road and the unpaved area, while others stated that the collision had occurred in the right lane of the main road. 13. On 16 January 2003 the gendarmerie expert issued his report (“the first report”). He stated that owing to the contradictory nature of the witness accounts the location of the collision could not be established with any certainty. He continued by saying that if the crash had occurred on the shoulder, then the victim bore five-eighths responsibility, as he had had no reason for leaving his lane and crossing to the shoulder; the remaining responsibility fell on the General Directorate of Highways (two-eighths) and B.T. (one-eighth) for not taking the necessary safety measures around the road construction work. If, however, the collision had occurred in the right lane of the main road, then B.T. and the General Directorate of Highways were six-eighths and two-eighths liable respectively for occupying the main road without taking any safety measures. 14. On 11 April 2003 the Forensic Medicine Institute issued a report concerning the accident (“the second report”). Relying on all the information in the case file, they found that the collision had occurred on the main road. On the basis of that finding, it declared that B.T. was threeeighths responsible for occupying the main road, the victim was threeeighths liable for not reacting effectively and redirecting the car in a timely manner to avoid a collision, and the General Directorate of Highways was two-eighths responsible for not placing warning signs and signals on the road. 15. On 17 June 2003 the first applicant objected to the Forensic Medicine Institute’s report. It appears that the Sultanhisar Criminal Court ordered a third report owing to the contradictions between the first two. 16. On 8 September 2003 three court-appointed experts issued their own accident report (“the third report”), where they reached the same findings as the Forensic Medicine Institute. 17. On 5 March 2004 an additional indictment was filed against Y.S., the head of the team of workers carrying out the road construction work (“the foreman”) for causing Utku Uyar’s death through negligence by not placing signs or a man with a flag on the road to warn drivers about the construction work. 18. At a hearing held on 23 June 2004 Y.S. denied all responsibility for the failure to take safety measures, claiming that such measures were the responsibility of his superiors. 19. At its fifteenth hearing, held on 30 November 2004, the Sultanhisar Criminal Court delivered its judgment. It convicted B.T. and Y.S. as charged on the basis of the second and third reports, and sentenced them to a judicial fine. 20. The parties appealed against the trial court’s judgment. 21. On 11 July 2005 the public prosecutor’s office attached to the Court of Cassation remitted the case to the Sultanhisar Criminal Court for a reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. 22. At a hearing held by the Sultanhisar Criminal Court on 9 November 2005, the defendant Y.S. argued that the responsibility for taking safety measures on the road fell on Ş.Z., the head of the road construction site. 23. On 22 November 2005 the Sultanhisar Criminal Court requested that the General Directorate of Highways indicate whether responsibility for taking the necessary safety measures at the road construction site had been that of Y.S. or Ş.Z. The first applicant objected to that request, stating that the trial court had no jurisdiction to collect new evidence at that stage of the proceedings as the case had been remitted to it only for a reassessment of the sentence in the light of the new Criminal Code. The first applicant’s objection was dismissed, having regard to the authority and duty of a trial court to collect relevant evidence at all stages of the criminal proceedings. 24. On 21 December 2005 the General Directorate of Highways informed the Sultanhisar Criminal Court that the head of the construction site was responsible for placing the necessary warning signs while the foreman was responsible for keeping those signs in place for the duration of the construction work. It added that warning signs had been placed on the road at the time of the accident. 25. On 17 May 2006 Ş.Z. was heard as a witness. He stated that his responsibility was limited to placing warning signs around the construction site, which he had duly fulfilled. He added that the inspection of the day-to-day work at the site was the responsibility of the foreman, who was Y.S. 26. At a hearing held on 20 June 2006 the trial court ordered an additional report to determine the liability of Y.S. and Ş.Z. for the accident. 27. The additional report, issued on 27 November 2006 (“the fourth report”), found that the responsibility to take safety measures fell on Ş.Z. and not Y.S. He was, therefore, two-eighths liable for the accident, according to the experts. 28. On 27 February 2007 the Sultanhisar Criminal Court again convicted B.T. under the relevant provisions of the former Criminal Code, which were more favourable in the circumstances. However, on the basis of the additional report, it acquitted Y.S. and decided that a criminal complaint should be filed against Ş.Z. with the Sultanhisar public prosecutor’s office. On 6 March 2007 the first applicant appealed against that judgment. 29. On 6 July 2009 the Court of Cassation upheld Y.S.’s acquittal, but quashed the trial court’s judgment in so far as it concerned B.T., holding that the trial court had to consider whether the procedure for the suspension of the pronouncement of judgments (hükmün açıklanmasının geri bırakılması), provided for in Article 231 of the Code of Criminal Procedure (Law no. 5271), was applicable in the circumstances. 30. On 28 January 2010 the first applicant requested that the Sultanhisar Criminal Court file a criminal complaint against Ş.Z., as per its decision dated 27 February 2007. 31. At a hearing held on 30 March 2010 the Sultanhisar Criminal Court issued an order for the Sultanhisar public prosecutor to indicate whether an investigation had been commenced against Ş.Z., and if not, to duly commence the investigation process, having regard to the impending expiry of the limitation period. At the same hearing the criminal court decided to suspend the pronouncement of the judgment against B.T. (hükmün açıklanmasının geri bırakılması), pursuant to Article 231 §§ 5 and 6 of the Code of Criminal Procedure (Law no. 5271). 32. On 6 April 2010 the applicant objected to the decision to suspend the pronouncement of the judgment, arguing that the conditions for such a suspension, as set out in Article 231 § 6 of the Code of Criminal Procedure, had not been satisfied. 33. On 31 May 2010 the Nazilli Assize Court dismissed the applicant’s objection, finding that the requirements of the above-mentioned article of the Code of Criminal Procedure had been complied with. 34. It appears that in the meantime, on 5 April 2010, the registry of the Sultanhisar Criminal Court filed a criminal complaint against Ş.Z. with the Sultanhisar public prosecutor’s office. 35. On 14 April 2010 the Sultanhisar public prosecutor delivered a decision not to prosecute in relation to Ş.Z. as prosecution of the offence in question had become time-barred. 36. On an unspecified date the applicants filed a criminal complaint against the members of the registry of the Sultanhisar Criminal Court for neglect of duty. They alleged that by delaying the filing of a criminal complaint against Ş.Z., they had caused his prosecution to become timebarred. 37. On 6 September 2010 the Sultanhisar public prosecutor filed a bill of indictment with the Sultanhisar Magistrates’ Court against three members of the registry of the Sultanhisar Criminal Court for neglect of duty. 38. On 11 July 2011 the Sultanhisar Magistrates’ Court acquitted the defendants on the grounds of an absence of mens rea because the offence of neglect of duty required a specific intent, which had been absent. 39. The applicants appealed against that judgment. 40. On 17 December 2015 the Court of Cassation upheld the judgment of the Sultanhisar Magistrates’ Court. 41. In the meantime, on 27 December 2004 the applicants brought compensation proceedings against B.T., Y.S. and the General Directorate of Highways before the Sultanhisar Civil Court of First Instance (“the Sultanhisar Civil Court”). The first applicant claimed 639 Turkish liras (TRY) and TRY 35,000 in respect of pecuniary and non-pecuniary damage, respectively. The second and third applicants claimed TRY 35,000 and TRY 5,000, respectively, in non-pecuniary damages. 42. On 4 February 2010 the Sultanhisar Civil Court dismissed the claims against Y.S. on account of his acquittal in the criminal proceedings. It also delivered a decision of non-jurisdiction in respect of the claims against the General Directorate of Highways as such claims were to be brought before the administrative courts. Relying on the second and third reports issued during the criminal proceedings, the Sultanhisar Civil Court held that B.T. held three-eighths liability for Utku Uyar’s death and ordered him to pay TRY 239.77 (approximately 115 euros (EUR)), plus interest, in respect of pecuniary damage to the first applicant, in proportion to his responsibility for the death. It also ordered B.T. to pay compensation in respect of nonpecuniary damage of TRY 2,000 (approximately EUR 960) to each of the first two applicants, and TRY 500 (approximately EUR 240) to the third applicant, together with interest running from the date of the accident. 43. On 29 March 2010 the applicants appealed against the judgment of the Sultanhisar Civil Court, arguing in particular that the compensation for non-pecuniary damage ordered by that court had been minimal. 44. On 27 April 2011 the Court of Cassation granted the applicants’ request and quashed the judgment of the Sultanhisar Civil Court, ordering that court to award a higher level of compensation for non-pecuniary damage to the applicants. 45. It appears that on 20 December 2011 the Sultanhisar Civil Court ordered B.T. to pay compensation in respect of non-pecuniary damage of TRY 15,000 (approximately EUR 6,085) to each of the first two applicants, and TRY 2,000 (approximately EUR 810) to the third applicant, together with interest running from the date of the accident. 46. On 16 April 2012 the Court of Cassation quashed the judgment of the Sultanhisar Civil Court in so far as it concerned the first two applicants, on the grounds that the compensation awards for non-pecuniary damage to those applicants had been excessive. The case was remitted to the Nazilli Civil Court of First Instance (“the Nazilli Civil Court”) on account of the closure of the Sultanhisar Civil Court. 47. On 26 December 2012 the Nazilli Civil Court ordered B.T. to pay TRY 8,000 (approximately EUR 3,370) to each of the first two applicants in respect of non-pecuniary damage, together with interest running from the date of the accident. B.T. appealed against this judgment but the applicants did not submit an appeal. 48. On 11 March 2015 the Court of Cassation upheld the judgment of the Nazilli Civil Court. 49. On an unspecified date in 2011 the applicants brought an action for compensation before the Aydın Administrative Court against the General Directorate of Highways. The first two applicants sought TRY 35,000 each in respect of non-pecuniary damage, and the third applicant requested TRY 5,000. 50. Relying on the second report, submitted by the Forensic Medicine Institute to the Sultanhisar Criminal Court, on 11 October 2012 the Aydın Administrative Court found the General Directorate of Highways to be partially responsible for the death of Utku Uyar on account of the absence of the necessary warning signs and signals to alert drivers to the ongoing road construction work. Accordingly, it granted the applicants’ request in part and ordered the General Directorate of Highways to pay the first two applicants TRY 20,000 (approximately EUR 8,530) each and the third applicant TRY 5,000 (approximately EUR 2,130) in respect of nonpecuniary damage, together with interest running from 27 December 2004 (the date on which the first compensation claim had been made before the Sultanhisar Civil Court). 51. It appears that on 23 April 2013 the applicants received TRY 84,289.89 (approximately EUR 35,790) from the General Directorate of Highways. 52. In the meantime, the General Directorate of Highways appealed against the judgment of the Aydın Administrative Court. On 12 May 2016 the Supreme Administrative Court upheld the judgment of the first-instance court. 53. A description of the domestic law regarding the new remedy introduced by Law no. 6384 to deal with complaints relating to the excessive length of proceedings may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), Demiroğlu v. Turkey ((dec.), no. 56125/10, 4 June 2013) and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014).