BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
FINAL
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
33026/03
by GENÇER İNŞAAT TAAHHÜT
TURİZM
TİCARET SANAYİİ LTD. ŞTİ.
against
Turkey
The
European Court of Human Rights (Third Section), sitting on
29 September 2009 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Işıl
Karakaş,
judges,
and Santiago
Quesada, Section
Registrar,
Having
regard to the above application lodged on 21 July 2003,
Having
regard to the partial decision of 21 October 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant company,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Gençer İnşaat Taahhüt Turizm Ticaret
Sanayii Ltd. Şti., is a Turkish commercial company based
in Ankara. It was represented by Mr M. Bir, a lawyer
practising in Ankara. The Turkish Government (“the
Government”) were represented by their Agent.
- On
18 June 1996 the applicant company brought civil proceedings against
a private individual (Ö.L.Ö.) before the Kaş Civil
Court of First Instance, claiming unjust enrichment.
- The
first hearing scheduled for 24 September 1996 was postponed for
administrative reasons. At the next hearing, which was held on 22
October 1996, both parties requested an adjournment to present their
evidence.
- At
the following hearing on 20 December 1996 the applicant company
explained that it wished to adduce as evidence the entire case-file
of a pending claim for reimbursement it had lodged against Ö.L.Ö.
The court therefore decided to await the outcome of the proceedings
concerning the reimbursement claim and adjourned the case to 2 April
1997. The case-file indicates that the judgment in respect of the
applicant company’s reimbursement claim was delivered on 22
October 1996, in accordance with an agreement that had been reached
between the applicant company and Ö.L.Ö. This judgment was
served on the applicant company on 7 May 1997 and became final in the
absence of any appeal.
- As
neither party attended the following two hearings on 2 April 1997 and
28 May 1997 the court decided to discontinue the proceedings unless
asked to reinstate them. Following a request to that effect by the
applicant company the case was reinstated on 18 August 1997 and a
hearing was scheduled for 5 November 1997.
- Of
the fifteen subsequent hearings that were held between 5 November
1997 and 23 February 2000, the applicant company failed to attend
eight and requested adjournments in a further two.
- On
3 June 1998 an expert report was requested by the court. The report
was submitted on 3 December 1999.
- The
Kaş Civil Court of First Instance held twenty-three hearings in
forty-six months before it delivered its judgment on 14 April 2000.
The court awarded the applicant company 8,754,110,491 Turkish liras.
Both parties appealed. On 21 March 2001 the Court of Cassation
quashed that judgment on the ground, inter alia, that the
applicant company had not presented material evidence as proof of its
alleged loss. The applicant company’s rectification request was
dismissed on 17 September 2001.
- The
case was remitted to the Kaş Civil Court of First Instance,
which abided by the decision of the Court of Cassation and dismissed
the case on 21 November 2001. The applicant company appealed. On
10 June 2002 the Court of Cassation upheld the judgment.
- The
applicant company then sought rectification. On 26 December 2002
the Court of Cassation refused the applicant company’s request.
- The
decision was lodged with the first-instance court’s registry on
7 January 2003 and served on the applicant company on 4 February
2003.
COMPLAINT
The
applicant company complained that the length of the proceedings had
been incompatible with the “reasonable-time” requirement,
laid down in Article 6 § 1 of the Convention.
THE LAW
- The
applicant company’s complaint relates to the length of the
civil proceedings, which began on 18 June 1996 and ended on
26 December 2002. They thus lasted some six years and six months
for two levels of jurisdiction, during which six judgments were
delivered. Almost four years of this period was taken up before the
first-instance court until it delivered the initial judgment.
- The
Government rejected the allegation and submitted that the case should
be rejected for failure to comply with the six-month rule.
- The
Court does not find it necessary to examine this issue as, in any
event, it finds the complaint manifestly ill-founded on the following
grounds.
- It reiterates that the reasonableness of the length of
the civil proceedings must be assessed in the light of the
circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of 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). Furthermore, the Court may, as
appropriate, make an overall assessment of the length of the
proceedings (see Cifola v. Italy, 27 February 1992,
§ 14, Series A no. 231 A).
- Given
that the determination of the claim required expert evidence, the
Court considers that the civil proceedings in question involved a
certain degree of complexity.
- As
regards the conduct of the judicial authorities, the Court observes
that during the period under consideration the case was examined at
two levels of jurisdiction and a total of six judgments were
delivered. Although the first-instance court delivered its first
judgment after three years and ten months, it examined the
case-file regularly, holding a total of twenty-three hearings in
forty-six months. Only the first hearing had to be postponed for
administrative reasons and this delayed the proceedings one month. No
other inordinate delay occurred in the proceedings.
- The
Court also notes that the first-instance court was forced to suspend
the proceedings because of the parties’ failure to attend two
subsequent hearings before resuming them at the applicant company’s
request. However, even then, the applicant company failed to attend
eight hearings out of the fifteen that were held after the
proceedings were resumed.
- Consequently,
the Court considers that the authorities displayed due diligence in
handling the applicant company’s case, that there were no
delays after the first-instance court delivered its first judgment on
14 April 2000 and that any delay before then cannot be
attributed to the authorities in the present case.
- In
view of the foregoing and having regard to the overall length of the
proceedings, the Court finds that the applicant company’s
complaint is manifestly ill-founded within the meaning of Article 35
§ 3 and must be rejected in accordance with Article 35 § 4
of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
