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Cite as: [2011] ECHR 1515

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SECOND SECTION

CASE OF KULMAÇ v. TURKEY

(Application no. 43874/06)

JUDGMENT

STRASBOURG

4 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kulmaç v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 13 September 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 43874/06) 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 national, Mr Halis Kulmaç (“the applicant”), on 28 September 2006.

The applicant was represented by Mr N. N. Tarakçı, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 2 November 2010 the President of the Second Section decided to give notice of the application to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1956 and lives in Istanbul.

On 19 July 1992 as a result of a car accident, the applicant’s car got severely damaged. However, the insurance company failed to pay the damages and the applicant brought proceedings before the Istanbul Commercial Court, claiming compensation.

Following two judgments which were quashed by the Court of Cassation, on 29 December 1998 the Istanbul Commercial Court partially accepted the case and held that the defendant company was to pay compensation to the applicant.

The applicant did not appeal against the judgment of the Commercial Court and was paid the total sum on 22 October 1999.

Subsequently, on 22 November 1999 the applicant initiated proceedings requesting reparation (munzam zarar) for his loss resulting from the delay in the payment of the compensation.

On 12 February 2002 the Istanbul Commercial Court dismissed the case. That judgment was quashed by the Court of Cassation on 13 January 2003.

Having examined the case again, on 14 September 2004 the Commercial Court partially accepted the case and awarded the applicant a certain sum of reparation.

On 30 January 2006 the Court of Cassation upheld the judgment of the first-instance court. The applicant was notified of this final decision on 28 March 2006.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of two sets of proceedings he had brought before the Istanbul Commercial Court 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 argument. They maintained that the impugned proceedings could not be considered to have been excessively long in view of the complexity of the case, the difficulties in collecting evidence and the notification process. They concluded therefore that there had been no delay in the proceedings that could be attributable to the State.

The Court observes that the first set of proceedings concerning the applicant’s claim for compensation became final on 22 October 1999, when the applicant received the total amount awarded by the Istanbul Commercial Court. The Court therefore declares this part of the complaint inadmissible for non-compliance with the six-month time-limit within the meaning of Article 35 § 1 of the Convention.

As regards the second set of proceedings, the period to be taken into consideration began on 22 November 1999 and ended on 30 January 2006. It thus lasted six years and two months for two levels of jurisdiction.

The Court notes that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

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 v. France [GC], no. 30979/96, §§ 42-46, ECHR 2000 VII, and Daneshpayeh v. Turkey, no. 21086/04, §§ 26-29, 16 July 2009).

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

The applicant complained that the appeal proceedings before Court of Cassation had not provided an effective remedy whereby his arguments were evaluated as required by Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 does not guarantee a right of appeal (see, mutatis mutandis, Delcourt v. Belgium, 17 January 1970, §§ 25 26, Series A no. 11, and De Ponte Nascimento v. the United Kingdom (dec.), no. 55331/00, 31 January 2002). However, where appeal courts do exist, the guarantees of Article 6 must be complied with, for instance in that they guarantee to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”. In so far as the complaint may be examined under Article 6 of the Convention, the Court notes that there is no appearance of a violation in the instant case. The applicant was able to appeal against the judgment of the first-instance court and his submissions were evaluated by the Court of Cassation in the light of the domestic law (see among others, Brualla Gómez de la Torre v. Spain, 19 December 1997, §§ 35-39, Reports of Judgments and Decisions 1997 VIII, and Dobrić v. Serbia, nos. 2611/07 and 15276/07, §§ 50 55, 21 June 2011).

It follows that the complaint should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. 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.”

The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning the excessive length of the proceedings, in so far as it concerns the reparation proceedings, admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 4 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Dragoljub Popović
Deputy Registrar President