European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> GENCER INSAAT TAAHHUT - TURIZM TICARET SANAYII LTD STI v Turkey - 33026/03 [2009] ECHR 1639 (29 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1639.html
Cite as: [2009] ECHR 1639

[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