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FOURTH
SECTION
CASE OF ÖZTUNÇ v. TURKEY
(Application
no. 74039/01)
JUDGMENT
STRASBOURG
27
March 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Öztunç v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and
Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 74039/01) against the
Republic of Turkey lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Turkish national, Mr Hasan
Öztunç (“the applicant”), on 14 July
2001.
- The
applicant was represented by Mr A. Kıran, a lawyer practising in
Van. The Turkish Government (“the Government”)
did not designate an agent for the purposes of the proceedings before
the Court.
- On
2 September 2005 the
Court decided to communicate the application. Applying Article 29 §
3 of the Convention, it decided to rule on the admissibility and
merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lives in Van.
- In
1985 the applicant obtained a contract from the Provincial
Administration of Van to carry out repair work in twelve public
schools in Başkale in order to render them operational.
- At
a later date, however, he noticed that some of the schools had not
yet been fully constructed. He applied to the Governor's Office in
Van and requested the contract to be annulled. He submitted that the
payment agreed on for the repairs was too low, given the amount of
work needed to complete the construction of those schools.
- The
Governor's Office requested the applicant to start the construction
and the repairs, reassuring him that he would be reimbursed for his
additional work.
- After
having completed the construction, the applicant applied to the
Provincial Administration of Van and requested additional
compensation of 47,000,000 Turkish liras (TRL). However, his repeated
efforts proved fruitless as no payment was made.
- On
17 July 1989 he filed an action with the Van Civil Court and claimed
the outstanding amount of TRL 47,273,000 plus interest.
- On
an unspecified date, the court appointed an expert to determine the
amount of additional payment that the applicant was entitled to
recover. However, the expert failed to submit his report.
- In
the absence of the expert report, the court ordered on-site visits to
the schools in order to establish the additional work carried out by
the applicant.
- On
30 September 1999 the members of the court, accompanied by new
experts, conducted an on-site examination at the schools.
- On
an unspecified date, the experts submitted their calculation of the
sums incurred by the applicant for the additional work.
- On
26 April 2000 the Van Civil Court awarded the applicant
TRL 47,273,000 plus interest calculated at three different rates
depending on the relevant period of time, i.e., 30% per annum running
from 17 July 1989 to 1 January 1998; 50% per annum from 1 January
1998 to 1 January 2000; and at the rediscount rate running from 1
January 2000 until the date of payment.
- The
applicant appealed. In his petition to the Court of Cassation he
complained about the loss that he had suffered as a result of the
high rate of inflation during the proceedings before the civil court.
- On
30 November 2000 the Court of Cassation upheld the decision of the
civil court. On 9 April 2001 the same court dismissed the applicant's
request for rectification.
- On
23 July 2001 the applicant was paid the total amount of
TRL 282,795,000, consisting of the capital plus interest
incurred until the payment date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested the applicant's argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the period to be taken into consideration began on
17 July 1989 when the applicant filed his action with the
first-instance court and ended on 9 April 2001, when the Court of
Cassation dismissed his request for rectification. The proceedings in
question lasted approximately eleven years and nine months before
three levels of jurisdiction.
- The
Government argued that the case was complex, given that the
first-instance court had had to conduct on-site examinations and to
review two expert reports. They further maintained that the applicant
had contributed to the length of the proceedings by failing to pay
court fees on time and that there had been no delays attributable to
the judicial authorities.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute
(see Frydlender v. France [GC], no. 30979/96,
§ 43, ECHR 2000-VII).
- As
regards the conduct of the applicant, the Court observes that, it
does not appear from the case file that he contributed to the
prolongation of the proceedings to any significant extent. His delay
in paying court fees appears to have halted the proceedings only for
a few weeks.
- As
to the conduct of the authorities, the Court observes that there was
a substantial delay in the proceedings before the first-instance
court. In this connection, it observes that the first instance
court took more than ten years to render a decision on the case.
Between 1989 and 1999 the court postponed the conduct of an on-site
examination on account of bad weather conditions and the security
situation in the region. The Court considers that ten years before
one instance is an excessively long period which cannot be justified
with reference to the above-mentioned considerations or the
complexity of the case. The Court therefore considers that no
convincing justification for these excessive delays has been offered
by the respondent Government.
- The
Court reiterates in this connection that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their legal systems in such a way that their courts can meet each of
the requirements of that provision, including the obligation to
decide cases within a reasonable time (see, among other authorities,
Pélissier and Sassi v. France [GC], no. 25444/94, §
74, ECHR 1999 II).
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings had been excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant further complained, in substance, that the length of the
proceedings had infringed his right to the peaceful enjoyment of his
possessions, as guaranteed by Article 1 of Protocol No. 1 to the
Convention.
- In
particular, he maintained that the delay had caused the amount of
compensation to lose its value.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 6 § 1 (see paragraph 28
above), the Court considers that it is not necessary to examine
whether, in this case, there has also been a violation of Article 1
of Protocol No. 1 (see, mutatis mutandis, Zanghì v.
Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, §
23).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 150,000 for non-pecuniary damage. He further
claimed a total of EUR 305,000 in respect of pecuniary damage.
- The
Government contested these claims.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, given the unreasonable length
of the proceedings, the Court considers that the applicant must have
sustained non pecuniary damage. Taking into account the
circumstances of the case and having regard to its case-law, the
Court awards the applicant EUR 8,400 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 20,670 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,000 for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine
whether there has been a violation of Article 1 of Protocol No. 1 to
the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into new Turkish Liras at the rate applicable at the
date of the settlement and free of any taxes that may be chargeable;
(i) EUR
8,400 (eight thousand four hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
