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EVRIM INSAAT A.S. v. TURKEY - 19173/03 [2010] ECHR 141 (9 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/141.html
Cite as:
[2010] ECHR 141
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SECOND
SECTION
CASE OF EVRİM İNŞAAT A.Ş. v. TURKEY
(Application
no. 19173/03)
JUDGMENT
STRASBOURG
9 February 2010
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 Evrim İnşaat A.Ş. v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 19 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 19173/03) 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 Turkish company, Evrim İnşaat
A.Ş. (“the applicant company”), on 20 April 2003.
The
applicant company was represented by Mr M.A. Erol, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
On
8 December 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant company, Evrim İnşaat A.Ş., is a
construction firm operating in Istanbul.
On
10 June 1987 the applicant company signed a contract with a
cooperative called Ülkü Kent Yapı Kooperatifi (“the
cooperative”) for the construction of dwellings on land
belonging to the latter.
In
November 1991 the applicant company completed the construction of 65%
of the project. However, following the election of a new board of
directors by the general assembly of the cooperative, the applicant
company's contract was terminated by the cooperative.
1. Compensation proceedings before the Istanbul
Commercial Court
On
22 July 1992 the cooperative brought an action in the 5th
Chamber of the Istanbul Commercial Court (“the first case”)
claiming damages from the applicant company on the ground that it had
failed to fulfil the terms of the contract. The cooperative argued
that the construction of the dwellings should have been completed by
31 August 1991, whereas the applicant company had only done 65% of
the work by November 1991.
On
the same date the applicant company brought a counter action in the
7th Chamber of the Istanbul Commercial Court (“the second
case”) claiming damages from the cooperative. The applicant
company argued that the cooperative had terminated the contract
without giving any reasons.
On
an unspecified date the two cases were joined by the 5th
Chamber of the Istanbul Commercial Court. In the course of the
proceedings the court sought expert opinions five times, which caused
substantial delays. For example, on 23 June 1993 the court decided to
obtain an expert opinion on the dispute. The case file was
transmitted to the experts on 10 September 1993 but their
report was not submitted to the court until 13 December 1995.
On
12 May 1999, in the first case, the Istanbul Commercial Court ruled
in favour of the cooperative and allowed part of its claim for
damages. The parties appealed.
On
22 December 1999, in the second case, the Istanbul Commercial Court
dismissed the applicant company's claim for damages, holding that it
had failed to prove the damage caused by the termination of the
contract by the cooperative.
On
15 June 2000 the Court of Cassation upheld the lower court's judgment
in the first case. The applicant company requested rectification of
that decision.
On
8 December 2000 the Court of Cassation ruled in favour of the
applicant company and quashed its decision of 15 June 2000. The case
was remitted to the lower court.
On
19 March 2001 the Istanbul Commercial Court decided to obtain a new
expert opinion on the matter. This opinion was submitted to the court
on 3 May 2001.
On
12 December 2001 the Istanbul Commercial Court ruled in favour of the
applicant company and ordered the cooperative to pay 1,806,424,884
Turkish liras. The cooperative appealed.
On
30 September 2002 the Court of Cassation upheld the above judgment.
That decision was sent to the Istanbul Commercial Court on 30 October
2002 and was served on the applicant on 14 March 2003.
2. Proceedings for additional compensation
On
4 June 2003 the applicant company brought an action in the Istanbul
Commercial Court (Istanbul Asliye Ticaret Mahkemesi) against
the cooperative requesting additional compensation (munzam zarar),
under Article 105 of the Code of Obligations, for the damage it had
sustained as a result of the low interest rate applied to the debt.
On
30 December 2005 the Istanbul Commercial Court dismissed the action,
holding that the applicant company had failed to prove the alleged
damage. The applicant company appealed. On 20 June 2007
the Court of Cassation upheld the judgment. On 17 March
2008 the Court of Cassation dismissed a request by the applicant
company for rectification.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the first set of compensation
proceedings had been incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention, which insofar as
relevant 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 22 July 1992 and ended
on 30 September 2002. It thus lasted some ten years and two months at
two levels of jurisdiction.
A. Admissibility
The
Court notes that this complaint 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).
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
In
a letter dated 23 August 2004, the applicant company raised a further
complaint under Article 13 of the Convention, alleging that there
were no remedies in domestic law in respect of the complaint under
Article 6 of the Convention.
The
Government contested the complaint.
The
Court notes that this complaint was introduced more than six months
after the conclusion of the proceedings in question. It follows that
it must be rejected, pursuant to Article 35 §§ 1 and 4 of
the Convention, for non-compliance with the six-month rule.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant company complained that the excessive length of the
proceedings had also infringed its right to the peaceful enjoyment of
possessions, as guaranteed by Article 1 of Protocol No. 1.
The
Government submitted that there had been no violation of this
provision.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
However,
having regard to its finding under Article 6 § 1 (see paragraph
26 above), the Court considers that it is not necessary to examine
separately whether there has also been a violation of Article 1 of
Protocol No. 1 (see Öztunç v. Turkey, no.
74039/01, §32, 27 March 2007, and Zanghì v. Italy,
19 February 1991, § 23, Series A no. 194-C).
IV. 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
The
applicant claimed 287,180 euros (EUR) in respect of pecuniary damage
and EUR 15,000 for non-pecuniary damage.
The
Government submitted that the amounts claimed were excessive.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant company must have
sustained some non-pecuniary damage. Accordingly, deciding on an
equitable basis, it awards the applicant company EUR 6,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant company also claimed EUR 10,000 for costs and expenses
incurred before the Court. It did not however submit any documents in
support of that claim.
The
Government contended that request was unsubstantiated.
According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the above criteria
and the applicant company's failure to substantiate its claim, the
Court makes no award under this head.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that it is not necessary to make a
separate examination of the merits of the complaint under Article 1
of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicant company, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 6,000
(six thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into new Turkish liras at
the rate applicable on the date of settlement;
(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
company's claim for just satisfaction.
Done in English, and notified in writing on 9 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
