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THIRD
SECTION
CASE OF ŞENOL ULUSLARARASI NAKLİYAT, İHRACAT VE
TİCARET LİMİTED ŞİRKETİ v. TURKEY
(Application
no. 75834/01)
JUDGMENT
STRASBOURG
20 May
2008
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 Şenol Uluslararası Nakliyat, İhracat
ve Ticaret Limited Şirketi v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall, President,
Rıza Türmen,
Bostjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power,
judges,
and
Stanley Naismith, Deputy Section Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75834/01) 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 Şenol Uluslararası Nakliyat, İhracat
ve Ticaret Limited Şirketi (Şenol International
Transport, Export and Commerce Limited Company; “the
applicant company”) on 11 June 2001. The applicant company was
represented before the Court by Ms Berrin Ergen, a lawyer practising
in Ankara.
- The
Turkish Government (“the Government”) did not designate
an agent for the purposes of the proceedings before the Court.
- Relying
on Article 6 of the Convention the applicant company alleged, in
particular, that the principle of equality of arms had not been
respected in the course of the administrative proceedings by which it
sought to annul a decision of the Ministry of Transport revoking its
transportation licence. It also alleged that the administrative
proceedings had not been concluded within a reasonable time.
- On
21 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant company is a Turkish company specialising in international
highway transportation.
- On
1 June 1992 at Trieste port the Italian police discovered thirty
kilograms of heroin stashed in a lorry which had been hired by the
applicant company for the purpose of transporting walnut logs from
Turkey to Italy. The driver of the vehicle escaped. As soon as they
found out about the incident the applicant company informed the
Istanbul Police Headquarters and submitted all the documents in their
possession concerning the transportation.
- On
31 December 1992 the applicant company's licence for international
highway transportation was extended until 31 December 1994.
- On
23 June 1994 the Ministry of Transport (“the Ministry”)
revoked the applicant company's licence pursuant to Article 53 (g) of
International Highway Transportation Regulations, on account of the
incident in Italy.
- On
12 July 1994 the applicant company brought an action before the
Ankara Administrative Court (“the Administrative Court”)
and requested the annulment of the Ministry's decision of 23 June
1994. It also requested the Administrative Court to grant an interim
decision to suspend the execution of the Ministry's decision.
- The
Ministry submitted written defence arguments, together with a number
of supporting documents, to the Administrative Court on 12 August
1994. The Administrative Court forwarded the Ministry's written
defence arguments to the applicant company. The documents attached to
the Ministry's written defence arguments, however, were not forwarded
to the applicant company but were placed in the case file of the
Administrative Court.
- On
31 August 1994 the applicant company submitted observations in
response to those of the Ministry. In their observations the lawyers
for the applicant company referred to a number of documents which had
been appended to the Ministry's written defence arguments of 12
August 1994 but which had not been communicated to them.
- The
applicant company's request for the interim measure was refused by
the Administrative Court on 14 September 1994.
- On
13 April 1995 the Administrative Court dismissed the case. In the
proceedings the applicant company had submitted that the drug
trafficking had been carried out by the driver of the hired vehicle
and that the company could not, therefore, be held responsible for
the driver's actions. In its decision the Administrative Court held,
inter alia, that since the impugned transportation had been
undertaken by the applicant company under its licence, it was
responsible for the transportation and therefore the Ministry had
acted lawfully when revoking the licence.
- An
appeal lodged by the applicant company on 13 October 1995 was
dismissed by the Supreme Administrative Court on 8 October 1997.
- On
19 October 2000 the Supreme Administrative Court refused the
applicant company's request of 6 February 1998 for a rectification of
the decision. That decision was served on the applicant company on
11 December 2000.
THE LAW
I. ALLEGED VIOLATIONS OF
ARTICLES 6, 7, 13, 17 AND 18 OF THE CONVENTION
- The
applicant company complained that the documents submitted to the
Administrative Court by the Ministry had not been communicated to it.
It further alleged that the administrative proceedings had not been
completed within a reasonable time.
- The
applicant company further complained that it had been denied a fair
trial before an independent and impartial tribunal. In this
connection, it alleged that the domestic courts had misinterpreted
the domestic law. According to the applicant company, the domestic
courts had not taken the evidence into consideration and had taken
the State's side. Moreover, the authorities had an unlimited margin
of appreciation and the administrative courts did not provide an
effective domestic remedy. Finally, the applicant company alleged
that its right to work had been restricted as a result of the
unlawful application of the International Highway Transportation
Regulations. In respect of these complaints the applicant company
relied on Articles 6, 7, 13, 17 and 18 of the Convention, the
relevant parts of which read as follows:
Article 6
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
Article 7
“1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed.
...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article 17
“Nothing in [the] Convention may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
Article 18
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
A. Admissibility
- In
relation to the complaint under Article 6 of the Convention
concerning the non-communication of a number of documents to the
applicant company by the Administrative Court, the Government
submitted that the documents had not been communicated to the
applicant company because the domestic court was not under an
obligation to do so under the applicable procedure. In any event,
those documents had been placed in the case file, to which the
applicant company's legal representatives had had access.
- The
Court notes that the applicant company, contrary to its claim, was in
fact aware of the documents in question. Lawyers representing the
applicant company took cognisance of their contents and referred to
them in their observations of 31 August 1994 (see paragraph 11
above).
- It
follows that the complaint concerning the non-communication of the
documents to the applicant company is manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and must,
therefore, be declared inadmissible pursuant to Article 35 § 4.
- As
for the complaint under Article 6 § 1 of the Convention
concerning the length of the administrative proceedings, the Court
considers that it raises complex issues of law and fact under the
Convention, the determination of which should depend on an
examination of the merits. The Court therefore concludes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. No other grounds for declaring it
inadmissible have been established. It must therefore be declared
admissible.
- Concerning
the applicant company's remaining complaints under Articles 6, 7, 13,
17 and 18 of the Convention, the Court finds that, in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, these complaints do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application should be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
B. Merits
- The
applicant company complained that the administrative proceedings had
not been concluded within a reasonable time, contrary to Article 6 §
1 of the Convention.
- The
Government contested the allegation.
- The
Court observes that the proceedings began on 12 July 1994 when the
applicant company brought an action before the Ankara Administrative
Court, and ended on 19 October 2000 when the Supreme Administrative
Court refused the applicant company's request for rectification. The
proceedings thus lasted just over six years and three months, during
which three decisions were rendered. In this connection the Court
would point out that it took the Supreme Administrative Court two
years to render its decision of 8 October 1997. Furthermore, the
Supreme Administrative Court did not decide on the request for
rectification for a period in excess of two years and eight months.
These delays contributed substantially to the total length of the
proceedings.
- 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, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. 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 company claimed 7,054,290 euros (EUR) in respect of
pecuniary and EUR 25,567 in respect of non-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 the claim in
respect of pecuniary damage. On the other hand, it awards the
applicant EUR 1,000 in respect of non-pecuniary damage.
B. Costs and Expenses
- The
applicant company also claimed EUR 28,120 for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court.
- The
Government submitted that the sum claimed was excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are 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 covering costs under all
heads.
C. Default interest
36. 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 complaint under Article 6 § 1
of the Convention concerning the length of the proceedings admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into new Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of its 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
company's claim for just satisfaction.
Done in English, and notified in writing on 20 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley
Naismith Josep Casadevall
Deputy Registrar President
