European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9522/03
by Naci BALKAR (BALTUTAN) and ANO İNŞAAT
VE TICARET LTD. ŞTİ.
against Turkey

The European Court of Human Rights (Third Section), sitting on 7 October 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 4 December 2002,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Naci Balkar (Baltutan) is a Turkish national who was born in 1934 and lives in Ankara. The second applicant is a company founded by the first applicant and based in Turkey. They are represented before the Court by Mr K. Berzeg and Ms A. Bıçak, lawyers practising in Ankara.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 9 May 1977 the applicant company contracted with the National Water Board (Devlet Su İşleri) to construct the Karacaören Dam in Burdur.

On 10 October 1990 the applicant company brought an action before the Seventh Chamber of the Ankara Civil Court for the payment of 500,000,000 Turkish liras (TRL), alleging that the National Water Board had failed to comply with its financial undertakings under the contract (case no. 1990/584)

On 27 December 1993 the Ankara Civil Court awarded the applicant company's claim in full, plus interest running from the date of the end of the construction on 9 June 1988.

On 18 November 1994 the Court of Cassation quashed the judgment of the first-instance court on procedural and substantive grounds.

On 16 March 1995 the applicant company brought an additional action against the National Water Board before the Eighth Chamber of the Ankara Civil Court and requested TRL 86,680,468,284 in relation to the latter's default in certain other financial undertakings under the construction contract (case no. 1995/255).

On 28 September 1995 the Eighth Chamber of the Ankara Civil Court decided to join case no. 1995/255 with case no. 1990/584 pending before the Seventh Chamber of the Ankara Civil Court.

On 15 December 1998 the Ankara Civil Court awarded the applicant company's claim in part, plus interest running from 9 June 1988.

On 20 May 1999 the Court of Cassation quashed the judgment of the first-instance court on procedural and substantive grounds, including erroneous calculations.

On 12 September 2000 the Ankara Civil Court awarded the applicant company's claim in part, plus interest running from 9 June 1988 for a certain part of the claim, and from the date of the lodging of the action for the rest.

On 6 February 2001 the Court of Cassation quashed the judgment of the first-instance court on account of erroneous calculations.

On 5 July 2001 the Ankara Civil Court awarded the applicant company's claim in part, plus interest running from 9 June 1988 for a certain part of the claim, and from the date of the lodging of the additional action, namely 16 March 1995, for the rest.

On 27 December 2001 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds.

On 19 April 2002 the Ankara Civil Court awarded the applicant company's claim in part, plus interest running from 9 June 1988 for a certain part of the claim, and from the date of the lodging of the additional action for the rest.

On 6 June 2002 the Court of Cassation upheld the judgment of the first-instance court with certain minor technical amendments.

On 27 September 2002 the National Water Board paid the applicant company TRL 410,996,390,000.

B.  Relevant domestic law

Article 105 of the Code of Obligations provides:

“Where the loss sustained by the creditor exceeds the interest due for delay and the debtor is unable to show that the creditor has been at fault, it is for the debtor to make good the loss.

If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits.”

In practice, the loss for which compensation may be claimed under this provision is the loss caused by the lapse of time between the date the debt is due and the date it is paid (see Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, § 19).

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention of the length of the civil proceedings.

The applicants further maintained under Article 1 of Protocol No. 1 that the delay in the payment of the amount due under the contract on account of the lengthy civil proceedings, coupled with the low interest rates, had caused them to suffer a financial loss.

THE LAW

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court observes that the domestic courts awarded the applicants' claims in part, plus interest. The Court considers that, in principle, any alleged damage arising from the late payment of the debt would be redressed through the payment of interest in line with the inflation rate. Furthermore, the Court considers that the applicants could and should have made use of the remedy available under Article 105 of the Code of Obligations if it had sustained loss exceeding the interest owed due to the delay (see Kat İnşaat Ticaret Kollektif Şirketi/İsmet Kamış ve Ortakları v. Turkey (dec.), no. 74495/01, 31 January 2006).

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants' complaint concerning the length of the civil proceedings;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President