Contradicted decisions of the Court of Cassation on limitation. The non-harmonization of the case law of the Chambers violates the right to a fair trial

JUDGMENT 

Aksis and others v. Turkey 30.04.2019 (no. 4529/06)

see here

SUMMARY

Contrary  jurisprudence of the Chambers of the Court of Cassation. Compensation claims against a contractor due to an earthquake in Turkey. Diversification of limitation periods according to the legal assessment of the facts. Contrary case law of the Political Chambers of the Court of Cassation on whether the disputed claims for compensation stemmed from inter-contractual or tort / delict liability. The 13th Civil Chamber of the  Court of Cassation dismissed the applicants’ claim against the contractors on the grounds that they had considered their claims as contractual rather than tort, taking as the time limit for the limitation of the expiry date of the construction works. Conversely, similar actions that were judged by the 4th Civil Chamber of the Court were considered as tort, and the date of the earthquake would have been taken as the commencement date of the limitation period. The applicants applied before the President of the Court for harmonization of the case law but their request was dismissed. Infringement of the right to a fair trial under Article 6 of the ECHR.

PROVISION 

Article 6

PRINCIPAL FACTS 

The applicants are 13 Turkish nationals who were born between 1926 and 1986 and live in Istanbul,
Bursa, Ankara, and Yalova (all in Turkey). Four of the applicants have died since lodging the
application.

The case concerned the dismissal of the applicants’ compensation claims for damages following the
collapse of apartments they owned in Yalova in an earthquake in August 1999.
They brought claims for compensation against the contractors who had built their apartments,
arguing that they should be held liable for their losses because they had not respected construction
laws and regulations.

Their claims were ultimately dismissed in 2004 and 2005 by the 13th Civil Chamber of the Court of
Cassation as being out of time. The court, characterising the applicants’ actions as contractual
claims, found that they had not complied with the 10-year time-limit for bringing an action, which
had started running from the date on which the construction works had ended.

In the meantime, the First Presidency of the Court of Cassation dismissed a request from the
applicants to harmonise the case-law on the application of time-limits in claims for damages arising
from the 1999 earthquake. The applicants had drawn attention in particular to other claims which
had been classified by the 4th Civil Chamber as actions in tort, meaning that the date of the
earthquake had been used for calculating the time-limit.

Relying in particular on Article 6 § 1 (right to a fair hearing) of the European Convention on Human
Rights, the applicants complained, inter alia, about the dismissal of their claims.

THE DECISION OF THE COURT 

Violation of Article 6 § 1 – in respect of ten of the applicants

The Court finds that the substance of the applicants’ complaints concerns precisely the difference in the legal assessment made by the 13th and the 4th Political Chamber of the Court of Cassation in respect of damages actions for damages caused by the earthquake of 17 August 1999 and differentiation regarding the  limitation periods. The reason why the applicants’ claim for damages was found to be out of time was because their claim was judged by the 13th Civil Chamber of the Court, which described their claim as a contractual claim, and ruled that the ten-year prescription of Article 125 of the former Code of Obligations began from the expiry date of the construction works. On the contrary, in similar cases, the 4th Civil Chamber  of the same court classifies such claims as arising from tort, by applying Article 60 of the Code, and considered that the limitation started from the date of the earthquake.

The ECtHR further notes that the request submitted by the applicants for harmonization of the case law was rejected by the President of the Court, who, without providing detailed explanations, considered that there was no need for harmonization.

In the light of the above, the Court can not accept the Government’s argument that the present case differs from Hayati Çelebi and Others. It therefore finds that the same considerations apply to the present case and that there is no reason to depart from the finding in this case.

Therefore, there has been a violation of Article 6 § 1 of the Convention.

The application was struck out of the Court’s list of cases in so far as two of the applicants were
concerned and was declared inadmissible in the case of one other applicant.

Just satisfaction: for full details of the sums allocated to the applicants in this respect, see today’s
judgment(echrcaselaw.com editing).


ECHRCaseLaw
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