CASE OF TANAY v. TURKEY
Violation of Art. 6-1;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1956 and lives in Istanbul. 6. On 18 November 1997 the General Directorate of National Roads and Highways (hereinafter “the Directorate”) expropriated 4,309 square metres of the applicant’s land in Tunceli. The expropriation decision was communicated to the applicant on 16 August 2000. According to the domestic procedure, the applicant had thirty days, which began the day after the decision was communicated to him, to ask for an increase in the amount of compensation. 7. On 1 September 2000 a certain Mr Sezai Yıldız, who had been authorised by the applicant to appoint a lawyer for him, had a power of attorney drawn up at a notary public, appointing Mrs Fatma Kalsen Demirdaş as legal counsel to represent the applicant. 8. On 19 September 2000 the applicant, with the assistance of his lawyer Mrs Demirdaş, brought an action before the Tunceli Civil Court (hereinafter the “Tunceli Court”), seeking increased compensation. Mrs Demirdaş requested the court to accept the case despite the expiry of the statutory time-limit on 17 September 2000, as she had had health problems preventing her lodging the case earlier. 9. On 9 November 2000 the Tunceli Court asked the Forensic Medicine Institute in Ankara to clarify whether Mrs Demirdaş had had health problems at the relevant time and whether those problems had been of a nature to render it impossible for her to come to the court house and lodge the applicant’s case within the statutory time-limit. 10. On 22 May 2001 the Erzurum branch of the Forensic Medicine Institute forwarded to the Tunceli Court a number of medical reports, confirming that Mrs Demirtaş had been ill between 23 August 2000 and 17 September 2000 and had thus been unable to lodge the case within the statutory time-limit. 11. The Tunceli Court accepted the medical report and began examining the merits of the case. In the course of the proceedings it had regard to the zone plan, the expropriation documentation, two principal and two additional expert reports, and awarded the applicant additional compensation on 31 May 2001. The Directorate appealed. 12. On 3 March 2003 the Court of Cassation quashed the decision, quoting the applicant’s name, instead of that of his representative, as the person who had been ill. The Court of Cassation stated that the applicant had given a power of attorney to Fatma Kalsen Demirdaş so that, even if he had been ill, Mrs Kalsen Demirdaş could have lodged the claim on his behalf within the statutory time-limit. The Court of Cassation consequently held that the case had been time-barred on 17 September 2000. 13. In an application for rectification Mrs Demirdaş argued that it was she who had been ill, not her client. The Court of Cassation had therefore made a factual error which should be rectified. 14. On 12 May 2003, the Court of Cassation held that “amending the factual error would not affect the outcome”, and dismissed the rectification request. 15. On 4 July 2003 the Tunceli Court concurred with the Court of Cassation’s decision and dismissed the case. On 13 November 2003 the Court of Cassation upheld the final ruling. 16. According to sections 166-168 of the Code of Civil Procedure, if a person or his or her legal representative is unable to comply with a statutory time-limit for reasons outside his or her control, that individual is given an additional ten-day period starting on the date when the situation giving rise to the inability to comply has ended.