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A Brief Evaluation of the Decision of the European
Court of Human Rights: Celebi and the
Others v. Turkey

Avrupa İnsan Hakları Mahkemesinin Çelebi ve Diğerleri-Türkiye Kararının Değerlendirmesi

Zeynep GÜLER

In 17 August 1999, an earthquake in north-western Turkey occurred and caused deaths of thousands of people and destruction of the buildings. After this loss, many people brought action against the construction companies for using poor quality materials in the buildings. In these cases, different chambers of Court of Cassation decided in different ways in respect of starting of the limitation period. In the Case Çelebi and Others v. Turkey, European Court of Human Rights emphasized that the different interpretations of the same regulation cause infringement of the legal security principle. The Court held the violation of Article 6 of the Convention.

Limitation Period, Beginning of the Limitation Period, Subsidiary Time Limit, Article 72 of Turkish Code of Obligations, Damages Caused by Earthquake and Radiation.

17 Ağustos 1999 tarihinde ülkemizde meydana gelen deprem binaların yıkılmasına ve binlerce insanın ölümüne sebep olmuştur. Deprem bölgesinde yer alan Türkiye’deki binaların depreme karşı dayanıklı olarak yapılması gerekirken, binaların sismik standartlara uygun yapılmaması ve düşük kalitede malzeme kullanılması büyük bir yıkıma yol açmıştır. Depremden sonra birçok insan inşaat şirketlerine karşı maddi ve manevi tazminat davası açmıştır. Bu davalar görülürken Yargıtay’ın farklı dairelerinden aynı konuya ilişkin olarak farklı kararlar çıkmıştır. Yargıtay’ın 13. Hukuk Dairesi tazminat davasının zamanaşımını eserlerin tamamlanma tarihinden başlatmıştır. 4. Hukuk Dairesi ise zararın deprem ile ortaya çıktığını belirterek haksız fiilin unsurlarının o anda oluştuğunu, bu sebeple zamanaşımının zararın meydana geldiği tarih olan deprem tarihinden itibaren başlatılması gerektiğini belirtmiştir. Çelebi ve Diğerleri-Türkiye davasında Avrupa İnsan Hakları Mahkemesi Yargıtay’ın farklı dairelerinde aynı konu üzerinde farklı kararlar verilmesinin adli yargılanma hakkını zedelediğini belirterek, Türkiye’yi tazminata mahkum etmiştir.

Zamanaşımı, Zamanaşımının Başlangıcı, Üst Zamanaşımı, TBK md. 72, Deprem ve Radyasyon Zararlarının Tazmini.

In this study, a decision of European Court of Human Rights regarding right to a fair trial will be analyzed. The case Çelebi and Others v. Turkey1 , concerned the divergence between the decisions of different chambers of Court of Cassation regarding the starting point of the limitation period on action for damages. First of all, the case and the legal dispute will be summarized and finally the assessments concerning this legal dispute will be declared.

The applicants and their relatives had lived in the dwellings which had completed in 1975 in Gölcük. On 17 August 1999, an earthquake in north-western Turkey occurred and caused destruction of buildings and ended up with the deaths of thousands of people. The dwellings of the applicants were damaged and their relatives lost their lives.

On 4 May 2000, applicants brought an action against the contraction company and its partners for pecuniary and non-pecuniary damages. The applicants relied on the contracts between them and the construction company. They claimed that the buildings had hidden defects generated by non-conformity of the buildings with anti-seismic standards and the usage of poor quality materials. According to the applicants the tremors caused the destruction as a result of the poor quality of the buildings and consequently they lost their relatives.

Yalova Regional Court dismissed their action based on Article 125 of the Former Code of Obligations2 on 27 December 2001. The Court declared that the ten-year time limitation regulated in this Article had started with the completion of the works and had already lapsed. For that reason, the Court didn’t consider the merits of the applicants. That judgment was upheld by the 13th civil chamber of the Court of Cassation on 25 June 2002.

After a short period, in similar cases3 , 4th civil chamber of the Court of Cassation applied Article 60 of the Former Code of Obligations4 instead of Article 125. The Court stated that the one-year limitation period had started with the date of earthquake when the damage occurred and as a result found the action admissible. 9th criminal chamber of the Court of Cassation had also decided in the same way and stated that the starting point of the limitation period is the date of earthquake5 . In consequence of these different decisions of different chambers on the same issue, applicants requested the harmonization of the case-law on 4 September 2002.

The applicants applied for a rectification of the 25 June 2002 judgement. They emphasized the harmonization request pending before the General Assembly. Nevertheless, both their application and the request for harmonization were dismissed.

The applicants complained of infringement of their right to a fair trial relying on Article 6 of the Convention6 . They claimed violation of Article 6 of the Convention because of the absence of an examination of the merits of their action and different interpretations of different Chambers of the Court of Cassation on the starting point of the limitation period as regards the action for damages.

The Court declared that if a contradictory application takes place in the highest judicial body of a member state, this judicial body violates the principle of legal security. The Court held the violation of the Article 6.

The legal dispute in this case focused on the starting point of the limitation period. The 13th civil Chamber of the Court of Cassation applied Article 125 of the Code of Obligations, while the 4th civil Chamber applied Article 60 of the same Code.

The applicants relied on the sale contract between them and the construction company and claimed hidden defects in the buildings was caused by poor quality of the materials used. The regional court declared that the responsibility of the defendant for the hidden defects starts with the completion of the work and subjects to ten-year limitation period according to Article 125. The 13th civil Chamber upheld this judgement.

On the other hand, in a similar case the plaintiffs asked for pecuniary and non-pecuniary damages relying on the responsibility of the construction company for tort. 4th civil Chamber emphasized the legal function of the limitation period and stated that the result of the lapse of the limitation time is abolishment of the ability to demand the debt, not the abolishment of the right to claim itself. Consequently, first of all the right must be callable for limitation period to start. Even if a right exist, it can’t be demanded until the necessary conditions are fulfilled. Chamber applied Article 60/1 of the Code of Obligations which regulates limitation time for tort.

4th civil Chamber declared that although there is an unlawful action, limitation period doesn’t start until the damage occurs. For these reasons, 4th civil chamber accepted the date of the earthquake the time when the damage had occurred, as the starting point of limitation period and found the action admissible.

Due to the divergence in case law and the judgment of ECtHR, beginning of the limitation period is also discussed during the law making process of the new Turkish Code of Obligations. The new regulation concerning the limitation period for tort is Article 727 . At first sight, Article 72 looks the same with Article 60. However, legislator has changed the expression in order to prevent jurisdiction from the interpretation which starts the limitation period when the damage occurs no matter how many years pass after the unlawful action8 . The legislator declares clearly that the limitation period lapses after ten years starting from the date of unlawful action.

Even before the legislation of Article 72, date of the unlawful action is accepted as the starting point of subsidiary time limit in the Turkish doctrine9 and in case-law of the Court of Cassation itself10 . It is even clearly declared that even if the damage occurs after years, the subsidiary time limit must be calculated from the date of unlawful action11 . Although the Turkish legislator clearly stated its intention in this Article and the Turkish doctrine agrees on the fact that starting point of the subsidiary time limit is the date of unlawful action, Court of Cassation adopted the approach of 4th Chamber which states that the beginning of the limitation period is the date when the damage occurs.

The decisions of the Court of Cassation are clearly against the Article 72 however, they have a social background. 1999 Earthquake caused such a destruction and loss because of the poor quality materials constructors used. The negligence and fault of these constructors were so obvious as a result of that, Court of Cassation decided in accordance with the decisions of 4th civil Chamber after the decisions of General Assembly12 . It is clear that the regulation is unsatisfying on the disputes concerning damages caused by earthquakes and radiation which show their effects after years from the date of action13 . Nevertheless, deciding against the regulations is not the solution for that problem. In order to prevent these unpleasant consequences of this regulation, amendments of the articles and legislation of new provisions can be the answer. Firstly, ten-year limitation period can be extended for twenty-year or thirty year like in the German Civil Code. Extension of the subsidiary time limit to twenty-year was also suggested in the Commission Report. Nevertheless, legislator preferred to regulate Article 72 with period of ten-year. The reason of this preference is the case-law of Court of Cassation. In Parliamentary Justice Commission Report it is clearly mentioned that there is no need to expend the subsidiary time limit because Court of Cassation starts limitation period from the date of damage occurs14 . The Commission’s suggestion of twenty-year subsidiary time period can provide a longer time for bringing an action however, it cannot be a solution for the damages which occur after twenty years. On the other hand, Ministry of Justice preferred ten-year time period because of the case-law of the Court of Cassation and accordingly accepted the fact that the subsidiary time limit begins with the date when the damage occurs. Unfortunately, Turkish legislator haven’t regulated Article 72 in accordance with this approach. The wording or the Article should have changed however, this opportunity to regulate this area have been missed. Still the Court of Cassation decides according to 4th Civil Chamber’s approach15 .

On the other hand, legislator regulated Art. 478 of Turkish Code of Obligations16 . According to this article which regulates limitation period for agreement of work, if the contractor has a gross fault, the limitation period is twenty years beginning from the date of delivery, no matter what type the defected work is. This provision was compatible with Article 72 in the Commission Report. Since the subsidiary time limit was proposed as 20 years. Nevertheless it is changed into ten year time period in the Parliamentary Justice Commission Report and these two limitation periods became incompatible with each other. Article 478 provides a longer subsidiary time period for damages on the buildings related to earthquake. However this regulation is specific just for agreement of work so its scope of application is limited. There is a need for a general provision.

For these reasons, either Article 72 should be amended or legislator can regulate specific provisions for damages caused by radiation and the other unlawful actions which show their effects after years from the date of action.

References

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HAVUTÇU, Ayşe, Haksız Fiil Sorumluluğunda Zamanaşımı Sürelerinin Başlangıcı, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Cilt 12, Özel S., 2010, s. 579-605.

KILIÇOĞLU, M. Ahmet, Borçlar Hukuku Genel Hükümler, 21. Bası, Turhan Kitabevi, Ankara 2017.

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TANDOĞAN, Haluk, Türk Mes’uliyet Hukuku, 1961 yılı birinci basıdan tıpkı bası, Vedat Kitapçılık, İstanbul 2010.

TEKİNAY, Selahattin Sulhi/AKMAN, Sermet/BURCUOĞLU, Haluk/ALTOP, Atilla, Borçlar Hukuku Genel Hükümler, Yedinci Bası, Filiz Kitabevi, İstanbul 1993.

(*) Research Assistant, TC. İstanbul Kültür University Faculty of Law, Department of Civil Law, [email protected]