CASE OF HASEFE v. TURKEY
Violation of Article 6 - Right to a fair trial
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicants were born in 1923, 1948 and 1952 respectively and live in Istanbul. 6. The first applicant is the mother and the remaining two applicants are the sister and brother of Ms Nilgün Hasefe, who was employed by Sabancı Holdings in Istanbul. On 9 January 1996 a number of armed persons raided the Holdings' premises and killed Nilgün Hasefe and two others. 7. On 11 November 1996 the applicants wrote to the Ministry of the Interior (“the Ministry”) and claimed compensation in accordance with Article 125 of the Constitution on the ground of the State's failure to protect Nilgün Hasefe's right to life. The Ministry rejected the claim on 9 December 1996. 8. On 14 February 1997 the applicants filed a compensation claim against the Ministry before the Istanbul Administrative Court (hereafter “the Istanbul court”). 9. On 14 October 1999 the Istanbul court partly allowed their claims for compensation and ordered the Ministry to pay certain sums of compensation to the applicants in respect of pecuniary and non-pecuniary damage. 10. On 9 March 2000 the applicants asked the Ministry to pay them the amounts of compensation awarded by the Istanbul court. 11. The Ministry appealed against the decision on 22 March 2000 and asked for an interim injunction suspending the execution of the Istanbul court's decision. In his written submissions the prosecutor at the Supreme Administrative Court agreed with the Ministry and requested that an interim injunction be granted and that the decision of the Istanbul court be quashed. The prosecutor's written submissions were not forwarded to the applicants. 12. On 18 May 2000 the Supreme Administrative Court granted the injunction sought by the Ministry and on 6 March 2002 it quashed the Istanbul court's decision of 14 October 1999. 13. The case was remitted to the Istanbul court, which decided on 31 January 2003 to reach the same conclusion as it had in its decision of 14 October 1999. It ordered the Ministry to pay the same amounts of compensation to the applicants as those awarded in its previous decision. The Ministry appealed. The applicants also appealed and argued that the amounts of compensation ordered by the Istanbul court were no longer satisfactory owing to the low rates of interest. 14. On 14 April 2005 the Supreme Administrative Court's General Council of the Administrative Chambers (Danıştay İdari Dava Daireleri Genel Kurulu) dismissed the Ministry's appeal and accepted the applicants' claims for higher rates of interest in respect of non-pecuniary damage. 15. A request by the Ministry for rectification of the Istanbul court's decision of 31 January 2003 was rejected on 16 March 2006. 16. On 31 October 2006 the Istanbul court adopted a decision in line with the decision of the Supreme Administrative Court's General Council of the Administrative Chambers in so far as it concerned the rates of interest for non-pecuniary damage, and awarded compensation to the applicants. On 2 March 2007 the Ministry appealed against the decision. According to the information provided by the Government, the appeal proceedings are still pending. 17. On 10 December 2007 the Ministry paid the applicants the amounts of compensation awarded by the Istanbul court in its decision of 14 October 1999 and the interest awarded in the same court's decision of 31 October 2006. The total sum paid to the three applicants was 63,080 new Turkish liras (TRY – approximately 37,000 euros (EUR) at the time). 18. Article 13 of the Code of Administrative Procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. The victim must first apply to the relevant administrative entity and claim compensation for the damage before he or she can lodge a compensation claim in the administrative courts. If this claim is dismissed in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 19. Article 28 of the Code of Administrative Procedure provides: “(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities. ... (3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities. (4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.”