Individual Application

The Facts

The Applicants Ahmet Özgan and Şule Özgan

Following the death of their relative S.Ö. in a traffic accident involving vehicle she/he had been in, which had been driven by the defendant M.S.K., the applicants instituted an action for compensation against the insurance company and the owner of the vehicle. The first expert report issued upon the court’s order, initially calculated the amount of compensation for deprivation of support in respect of the applicants respectively. Upon the defendant’s objection, the court ordered an additional report which was again contested and after which another additional report was prepared. The applicants brought a new action regarding the damages as calculated in the third expert report which exceeded the amount of compensation they had claimed in the case file no. E.2010/470 before the civil court. Partially accepting the case, the court awarded pecuniary compensation based on the amounts calculated in the first expert report and dismissed the applicants’ claim for the excess amount. It was stated in the reasoning of the decision that since the amount calculated in the first expert report, which was not contested by the plaintiffs, constituted a procedurally vested right in favour of the defendant. The court added that the compensation to be awarded should be based on the first expert report and that a procedurally vested right, theoretically, invalidates any amount excessing the damage calculated in the first expert report for not being contested by the plaintiffs. Therefore, the court concluded that bringing an additional action to claim excess amount could not revoke the aforementioned right vested in favour of the other party. Subsequent to the appellate proceedings, the court’s decision become final.

The Applicant İsmail Tuncel

The applicant, injured in a mining accident when he was working, suffered from a ruptured tendon in his left foot and an incision in his right hand. The report issued by the Social Security Institution (SSI) Ankara Provincial Directorate of Social Security Institution, Kocatepe Social Security Health Centre (SSI Health Centre) determined the applicant’s vocational inability/disability rate (degree of permanent incapacity for work) as 14%. The report also stated that a follow-up examination was needed. While the proceedings initiated by the applicant before the civil court was pending, the report issued after the applicant’s follow-up examination by the SSI Health Centre also reaffirmed the applicant’s vocational inability as 14%. However, the defendant employer objected to the rate determined by the SSI Health Centre. Thereupon, the civil court sent the case file to the 3^rd Specialization Board of the Forensic Medicine Institute (specialisation board) and ordered that a report be issued in the presence of the concerned, if necessary. In the report issued by the latter, the applicant’s disability rate was determined as 19%. In his petition to the Court, the applicant stated that since the rate of his vocational inability was determined as 19% in the report issued by the specialisation board, this rate should be based on in the calculation of compensation; or alternatively, a report should be issued by the General Board of the Forensic Medicine Institute (general board). The court, on the other hand, considering that the applicant failed to object to the 14% rate, and that the said rate only increased when the case file was sent to the specialisation board upon the defendant’s objection, concluded that the defendant party was procedurally vested with a right in their favour. Therefore, the court dismissed the applicant’s request to send the case file to the general board, and instead, it sent the file to an expert to establish the fault rates.

The Applicants’ Allegations

The applicants claimed that their right of access to a court had been violated due to the authorities’ failure to rely on the additional expert reports which calculated higher amounts of damages as well as the authorities’ failure to compensate the applicants’ actual damages in the respective proceedings in relation to traffic and work accidents.

The Court’s Assessment

1. As regards the Applicants Ahmet Özgan and Şule Özgan

In the present case, the court ordered an expert examination to calculate the amount of pecuniary compensation to be awarded to the applicants for being deprived of the support of their deceased relative. The court considered that in the first expert report the calculation had been based on certain assumptions, and therefore it requested an additional expert report, also taking into consideration the defendant’s objections. Despite the higher amount of the loss of financial support calculated in the additional report and the applicant's claims for the excess amounts through an additional action, the court refused to rely on the additional report and dismissed the compensation claims in this regard, considering that the applicants’ failure to contest the first expert report constituted a procedurally vested right in favour of the other party in terms of the compensation amount.

In this respect, although the pecuniary damages suffered by the applicants had been factually determined by the court through an expert examination carried out for the resolution of the dispute, the failure to compensate these damages on solely procedural grounds resulted in the deprivation, by a judicial decision, of the applicants’ rights afforded to them under the substantive law, thus depriving them of the opportunity to fully claim their rights. Accordingly, it has been considered that this procedural practice rendered ineffective the action brought by the applicants to avail themselves of the said right, thereby imposing a heavy and disproportionate burden on them. It has therefore been concluded that the interference with the right of access to a court was disproportionate.

Consequently, the Court has found a violation of the right of access to a court.

2. As regards the Applicant İsmail Tuncel

In the present case, a higher rate of disability on the part of the applicant was factually determined in an expert examination requested by the court for the resolution of the dispute. However, the failure to take into consideration this finding in the determination of the damage on solely procedural grounds and the applicant’s being forced to bring a new action to claim the aforementioned excess amount deprived him of the opportunity to fully claim his right that he could have actually enjoyed in accordance with the substantive law within the scope of the same proceedings. Accordingly, it has been considered that this procedural practice rendered ineffective the action brought by the applicant to avail himself of the said right, thereby imposing a heavy and disproportionate burden on him. It has therefore been concluded that the interference with the right of access to a court was disproportionate.

Besides, as in the present case, the determination of the rate of disability on the part of the persons in cases whereby compensation is sought for the damages arising from the loss of capacity for work due to work accidents is a technical issue requiring expertise. As a matter of fact, in practice, the courts resort to expert examination ex officio or upon the request of the parties for the determination of the rate of disability in cases of uncertainty. Therefore, in such a technical issue, it is incompatible with the nature of the work and of the dispute to expect the individuals to precisely foresee their actual disability rates while bringing an action and to formulate/limit his claims accordingly.

Consequently, the Court has found a violation of the right of access to a court.