AS TO THE ADMISSIBILITY OF
by Yakup YALÇIN
The European Court of Human Rights (First Section), sitting on 16 November 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr R. Türmen,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Neilsen, Registrar,
Having regard to the above application lodged on 20 May 1999,
Having regard to the partial decision of 13 February 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Yakup Yalçın, is a Turkish national who was born in 1937 and lives in Istanbul. He was represented before the Court by Mr H. Çınar and Mr E. Çınar, lawyers practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was one of the partners of a company named Balıkçılık İstihsal ve Satış Kooperatifi ve Ocak Pastanesi Kollektif Şirketi (“the Company”). The Company, together with a joint venture partner, leased the Tuzla Lagoon in Keşan, Edirne, for seafood production for a period from 1976 to 1987.
In October 1976, the Turkish, the United States and the NATO forces carried out military exercises in the area. As a result of wastes discharged by military vessels, the lagoon was polluted, which had detrimental effects on the Company’s investment.
On 19 October 1979, the applicant applied to the Keşan Civil Court for an assessment of the level of the pollution and the amount of damages that his enterprise had suffered. An expert report was prepared and submitted to the court on 10 March 1980. Relying on such report, the applicant applied to the Ministry of Defence for compensation.
Upon the Ministry’s refusal to compensate him, the applicant brought an action before the Keşan Civil Court, which held its first hearing on 9 March 1981.
In the meanwhile, the Company became bankrupt and went into liquidation. Pursuant to the applicable bankruptcy laws, the Keşan Civil Court ruled that the applicant no longer had standing and suspended the proceedings on 23 May 1983. The court held that only the liquidator (iflas idaresi) who was in charge of the management and liquidation of the assets of the bankrupt Company, was eligible to resume the proceedings. The court relied on a bankruptcy law principle under which all receivables including the rights, interests and claims relating to ongoing litigation automatically become part of the bankruptcy estate (iflas masası), created in the name and for the benefit of the creditors of a given bankrupt company.
On 23 May 1984, the liquidator applied to the Keşan Civil Court in order to resume the proceedings. From that date on, the proceedings continued with the liquidator being the only eligible plaintiff.
From 14 September 1984 to 16 July 1990, the court held a total of thirty four hearings, at least ten of which the liquidator failed to attend. Throughout these hearings, the court suspended the proceedings more than once in view of the liquidator’s failure to attend the hearings, but later resumed them upon the liquidator’s petition.
On 8 June 1990, the court held a hearing which the liquidator did not attend. The court postponed the hearing to 16 July 1990. The liquidator also failed to attend the postponed hearing. On 19 July 1991, the court struck the case off, ruling that the plaintiff, i.e. the liquidator, failed to pursue his case. This decision was not notified to the liquidator.
On 18 January 1995, having heard about this decision, the applicant filed an application with the Keşan Civil Court to contest its strike-off decision. On 27 January 1995, the court dismissed the application holding that the applicant lacked standing and that the liquidator alone could bring such an application. The court also decided to notify the strike-off decision of 19 July 1991 to the liquidator.
The applicant and the liquidator jointly appealed.
On 25 May 1995, the Court of Cassation quashed the civil court’s decision on a ground unrelated to the questions raised in the appeal. It ruled that under Article 62 § 1 of the “Act on the National Defence Duty” (Milli Müdafaa Mükellefiyeti Kanunu) the State’s liability for military operations had to be first examined by a national defence commission. The court found that the Keşan Civil Court’s hearing of the case without referring the matter to such a commission first was a procedural defect warranting quashing. Yet, the Court of Cassation has not made a ruling granting the applicant standing.
On re-examination, the Keşan Civil Court decided that an application needed to be made to a national defence commission. This court did not grant the applicant standing either. On 13 February 1996, the liquidator applied to the Ministry of Defence. The Ministry clarified on 4 March 1996 however that no such commission existed.
On 19 July 1996, the Keşan Civil Court decided to dismiss the case on the ground that a national defence commission’s assessment has not been submitted to it and that the prescribed time period had expired.
On 14 October 1996, the applicant and the liquidator jointly appealed this decision. On 27 June 1997, the Court of Cassation upheld it and dismissed an application for rectification on 25 December 1997. This latter ruling was served on 27 November 1998.
The applicant complains under Article 6 § 1 of the Convention that the domestic proceedings lasted for an excessively long period of time.
According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which in relevant part 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 submitted that the protracted nature of the proceedings could not be attributed to the authorities. In response, the applicant submitted, inter alia, that the overall length of the proceedings was sufficient to disclose a violation of the reasonable time principle of Article 6 § 1.
The Court observes that the proceedings began on 9 March 1981 and ended on 25 December 1997. However, it does not lose sight of the fact that the applicant was not a party to them uninterruptedly. Following the Company’s bankruptcy in 1983, the applicant ceased to be a party to the compensation case that he had initiated in 1981. His rights and claims in respect of that lawsuit became part of the bankruptcy estate (iflas masası). The decision of the Keşan Civil Court dated 23 May 1983 meant that the applicant no longer had standing. Thereafter, the case recommenced with the liquidator being the plaintiff.
After that date, the case was entirely at the liquidator’s disposal, i.e., he could have revoked or settled it or taken any other action legally available. The Court therefore considers that the proceedings after 23 May 1983 were not in the “determination of the civil rights” of the applicant but of the liquidator, acting on behalf of Company’s creditors.
Thus, the Court takes into account the proceedings from the applicant’s filing of the case until 23 May 1983. The Court recalls that it can only consider the period that elapsed after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions. It follows that the complaint, as far as it relates to the proceedings in which the applicant had standing, is inadmissible as being incompatible ratione temporis within the meaning of Article 35 § 3 of the Convention.
Finally, the court does not disregard the fact that there has been a new phase of proceedings after 1995. Indeed, on 18 January 1995, the applicant filed a petition to revive the discontinued proceedings. However, the civil court denied him standing and the Court of Cassation has not made a ruling reinstating his plaintiff status.
Despite the absence of such a grant, the civil court did not specifically exclude the applicant from the proceedings when it re-examined the case following the quashing decision of 25 May 1995.
The Court therefore considers that there is some uncertainty about whether the applicant could in fact be considered as a party to the proceedings that lasted from 18 January 1995 until 25 December 1997.
In any case however, the length of these proceedings do not disclose a violation of the reasonable time requirement of Article 6 § 1. They lasted for only two years and eleven months and involved five reviews at two instances.
It follows that the complaint, as far as it relates to the proceedings from 18 January 1995 to 25 December 1997, is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis