SECOND SECTION
CASE OF
BEŞERLER YAPI SAN. VE TİC. A.Ş. v. TURKEY
(Application no.
14697/07)
JUDGMENT
STRASBOURG
24 September 2013
This
judgment is final but it may be subject to editorial revision.
In the case of Beşerler Yapı San.
ve Tic. A.Ş. v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Committee composed of:
Peer Lorenzen, president,
András Sajó,
Nebojša Vučinić, juges,
and Atilla Nalbant, Acting Deputy
Section Registrar,
Having deliberated in private on 3 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 14697/07) 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 Beşerler Yapı San. ve Tic. A.Ş. (“the applicant”), on 23 March 2007.
The applicant was
represented by Mr M. Erol, a lawyer practising in Istanbul. The Turkish
Government (“the Government”) were represented by their Agent.
On 27 August 2009 the application was
communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant is a construction company, a legal
entity, based in Istanbul.
On 7 May 1999 a traffic insurance company lodged
a case with the Fatih Civil Court of First Instance against the applicant
company, claiming compensation on account of a traffic accident.
On 16 July 2002 the court granted the plaintiff’s
claim and subsequently the applicant company appealed
that decision.
. On
4 December 2003 the Court of Cassation quashed the decision of the court on the
grounds that the applicant company’s right to examine witnesses against it was
breached.
On 29 June 2004 the Fatih Civil Court of First
Instance, to which the case had been remitted, after having examined the
witnesses once again accepted the plaintiff’s
request.
On 13 March 2006 the Court of Cassation upheld
the decision.
On 21 September 2006 the Court of Cassation
dismissed a request by the applicant company for rectification of the judgment.
On 2 November 2006 the decision of the Court of
Cassation was notified to the applicant company.
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 that argument.
The period to be taken into consideration began
on 7 May 1999 and ended on 21 September 2006. The proceedings lasted approximately
seven years and four months before two instances.
A. Admissibility
The Court observes that a new domestic remedy
have been established in Turkey after the application of the pilot judgment
procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that
in its decision in the case of Turgut and others v. Turkey (no.
4860/09, 26 March 2013), it declared a new application inadmissible on the
ground that the applicants had failed to exhaust the domestic remedies as a new
domestic remedy had been envisaged. In so doing, the Court in particular
considered that this new remedy was, a priori, accessible and capable of
offering a reasonable prospect of redress for complaints concerning the length
of proceedings.
The Court further recalls that in its decision
in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it
could pursue the examination of the applications of this type which were
already communicated to the Government. It further notes that in the present
case the Government did not raise an objection in respect of the new domestic
remedy.
In light of the above, the Court decides to pursue
the examination of the present application. However, it notes that this
conclusion is without prejudice to an exception that may ultimately be raised
by the Government in the context of other communicated applications.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 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, and Ümmühan
Kaplan, cited above, § 49).
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. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicant complained under Article 13 of the
Convention that there was no effective remedy under
Turkish law whereby he could have contested the length of the proceedings
brought against him.
“Everyone whose rights and freedoms as set forth in the
Convention are violated shall have an effective remedy before a national
authority...”
The Government contested the argument.
A. Admissibility
The Court notes that this complaint is linked to
those examined above and it is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that this
complaint is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The Court has examined similar issues in
previous applications and has found violations of Article 13 of the Convention
in respect of the lack of an effective remedy under Turkish law whereby the
applicants could have contested the length of the proceedings at issue (see Daneshpayeh
v. Turkey, no. 21086/04, §§ 35-38,
16 July 2009, and Ümmühan Kaplan, cited above, §§ 56-58).
It finds no reason to depart from that conclusion in the present case.
The Court accordingly concludes that there has
been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
NO. 1 OF THE CONVENTION
The applicant claims without invoking any
particular provision of the Convention that the amount awarded lost its value
due to the length of the proceedings. This complaint must be considered under Article
1 of Protocol No. 1
The Government contested that argument.
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 paragraphs 16-18 above), the Court considers that it is not
necessary to examine whether, in this case, there has been a violation of
Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23,
Series A no. 194-C).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
. Relying
on Article 6 §§ 1 and 3 (d) of the Convention, the applicant company further
complains that it was denied a fair hearing as it could not examine the
witnesses against it. This complaint must be examined only under Article
6 § 1 as the proceedings are not criminal.
The Court of Cassation quashed the decision of
the first instance court, holding that the Fatih Civil Court of First Instance
had failed to carry out the necessary examination about the witnesses against
the applicant company and the cases were remitted to the first-instance court.
Subsequently the court examined the applicant company’s witnesses in the light
of the evidence submitted to it. It follows that this part of the application
is manifestly ill-founded and must be declared inadmissible pursuant to Article
35 §§ 3 and 4 of the Convention.
V. 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.”
The applicant claimed no amount in respect of
non-pecuniary damages. Accordingly, the Court considers that there is no call
to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Articles 6 §
1, 13 of the Convention and Article 1 of Protocol No.1 to the Convention
concerning the length of proceedings, the lack of effective remedies and the
right to the peaceful enjoyment of its possession in that respect admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article
13 of the Convention;
4. Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1;
Done in English, and notified in writing on 24 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Atilla Nalbant Peer
Lorenzen Acting Deputy Registrar President
