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KAT INSAAT TICARET KOLLEKTIF ŞİRKETİ - 74495/01 [2007] ECHR 662 (24 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/662.html
Cite as:
[2007] ECHR 662
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FOURTH
SECTION
CASE OF KAT İNŞAAT TİCARET KOLLEKTİF ŞİRKETİ
v.
TURKEY
(Application
no. 74495/01)
JUDGMENT
STRASBOURG
24 July
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 Kat İnşaat Ticaret Kollektif Şirketi
v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mrs F. Aracı, Deputy Section
Registrar,
Having deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 74495/01) 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 construction company registered
in Turkey, the Kat İnşaat Ticaret Kollektif Şirketi /
İsmet Kamış ve Ortakları (“the applicant”),
on 17 October 2000.
The
applicant was represented by Mr T. Elçi, a lawyer practising
in Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
On
31 January 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings.
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
On
18 August and 16 September 1987 and 16 May 1990 the applicant
concluded three contracts with the General Directorate for Water and
Infrastructure (İSKİ) (“the General
Directorate”) and undertook the construction of parts of
the water infrastructure in İstanbul.
Subsequent
to the failure of the General Directorate to pay the applicant the
relevant fees, on 10 October 1995 the applicant filed an action with
the 4th Chamber of the Istanbul Commercial Court and
requested the court to order the payment of 10,279,231,935 Turkish
liras (TRL), alleging that the General Directorate had failed to
comply with the contract of 16 May 1990.
In
1999 the General Directorate filed a cross-action with the
7th Chamber of İstanbul Commercial Court
requesting a sum of TRL 7,650,721,062, claiming that this sum
had been overpaid to the applicant.
On
an unspecified date, the 7th Chamber of İstanbul
Commercial Court decided that the case before it should be joined
with the case before the 4th Chamber of the same
court.
On
14 July 1999 the 4th Chamber of İstanbul Commercial
Court requested the 7th Chamber of the same court to
submit the file of a case (file no. 1999/724) which was related
to the case before it.
Between
14 July 1999 and 3 November 2000 the 4th Chamber of
İstanbul Commercial Court repeatedly requested the 7th
Chamber to send the aforementioned file.
On
3 November 2000 a copy of the file no. 1999/724 was submitted to the
4th Chamber of the İstanbul Commercial Court by the
applicant.
On
the same day the first-instance court awarded the applicant the claim
in full, plus interest at the rediscount rate, running from the date
of lodging of the case. The court dismissed the General Directorate’s
cross action.
On
14 January 2002 the Court of Cassation upheld the judgment of the
first-instance court.
On
23 October 2002 the Court of Cassation dismissed the request for
rectification of decision.
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 allegation.
The
period to be taken into consideration began on 10 October 1995
and ended on 23 October 2002. It thus lasted seven years for three
levels of jurisdiction.
A. Admissibility
The
Court notes that the remainder of the application 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 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).
In
the present case, it cannot be overlooked that a lengthy period –more
than five years- elapsed, before the first instance court rendered
its judgment (see paragraphs 5-11 above).
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
In
respect of its Article 6 complaint, the applicant claimed
100,000 euros (EUR) in respect of non-pecuniary damage.
The
Government contested this claim.
Ruling
on an equitable basis, the Court awards the applicant EUR 1,800
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed 7,850 US dollars for the costs and expenses
incurred before 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 as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant failed to submit any supporting documents in support of
its claim. The Court therefore rejects this claim.
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 remainder of the application
admissible;
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, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,800 (one
thousand eight hundred euros) in respect of non-pecuniary damage, to
be converted into New Turkish liras at the rate applicable at the
date of settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Araci Nicolas Bratza
Deputy Registrar President
