SECOND SECTION
DECISION
Application no. 33981/05
Nasreddin ALIEV and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 17 October 2017 as a Committee composed of:
Ledi Bianku, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 September 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are the Ina Tekstil İç ve Dış Tic. Ltd. Şti, a limited company registered in Turkey, and its shareholders Mr Nasreddin Aliev and Mrs Hakikat Alieva, Azerbaijani nationals, who were born in 1947 and 1959, and live in Baku. The applicants were represented before the Court by Mr S. Cengiz and Mr O. Soydan, lawyers practising in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The Ina Tekstil İç ve Dış Tic. Ltd. Şti (“the applicant company”) was operating in Free Zone of İzmir and was carrying out activities including buying, selling and manufacturing under its operating licence.
5. In November 2001 an investigation was conducted on the premises of the applicant company on suspicion of smuggling.
6. On 3 May 2002 the applicant company’s operating licence was revoked on account of unauthorised transfer of goods from the Free Zone and the discrepancy in numbers between the inventory and stock records of the company, with a decision of the Undersecretary of Foreign Trade.
7. Consequently, the company’s premises were transferred to the Directorate of the Free Zone, in accordance with paragraph 8 of Article 8 of the of the Free Zone Regulations, providing that when a company’s work licence had expired or been revoked, the Free Zone site leased from the Directorate had to be returned with its buildings.
8. On 29 May 2002 the applicant company filed an action with the İzmir Administrative Court for the annulment of the administrative decision. The applicant company claimed that its licence to operate had been revoked unlawfully by the administration. Moreover, the applicant company alleged that the administrative authorities had applied the new free zone regulations which had not been in force at the time of events.
9. Considering all the evidence before it, namely the inspection reports, the business records and statements taken from the company’s executives, on 30 January 2003 the İzmir Administrative Court dismissed the applicant company’s case. The Court found that the decision had been taken in accordance with the relevant regulations, given the inconsistency in the number of goods detected in the business records of the company and the omission of the applicant company to inform the authorities in that respect. In its judgment, the court further rejected the applicant company’s objection to the applicable law, based on the fact that its acts and omissions had breached the relevant provisions of both regulations. In this connection, the court considered that even if the provisions of the previous regulation had been applied, that would not have had any bearing on the merits of the case.
10. On 26 January 2004 the Supreme Administrative Court upheld the decision. During the appeal proceedings the Chief Public Prosecutor at the Supreme Administrative Court delivered his written opinion on the case and without raising any new issue, he invited the court to uphold the impugned decision. This opinion was not notified to the applicant company.
11. On 22 February 2005 the applicant company’s rectification request was rejected.
12. The final decision was served on the applicant company on 25 March 2005.
B. Relevant domestic law
13. The description of the relevant domestic law may be found in Kılıç and others v. Turkey (dec.), (no. 33162/10, §§ 10-13, 3 December 2013).
COMPLAINTS
14. The applicants complained under Article 6 § 1 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion to the applicant company during the appeal proceedings before the Supreme Administrative Court had violated their right to an adversarial and fair hearing.
15. Under the same provision they further alleged that the administrative proceedings had been unfair for the following reasons; inadequate reasoning of the judgment, the absence of a hearing during the appeal proceedings before the Supreme Administrative Court and the excessive length of the administrative proceedings.
16. Relying on Articles 6 § 1 and Article 1 of Protocol No. 1 of the Convention, the applicants complained that the company’s operating licence had been revoked and that its premises had been transferred to the Treasury as a result of an unfair trial. In this connection, the applicants alleged that the relevant provision of the Regulation, constituting the legal basis of confiscation of the company’s premises, had not been sufficiently clear and foreseeable.
17. Furthermore, under Articles 6 § 1 and 7 of the Convention, the applicants alleged that the company’s operating licence had been revoked on the basis of the domestic regulation which had not been in force at the time of events.
18. Finally, the applicants claimed under Article 13 of the Convention that there had been no effective domestic remedy which they could pursue against unfair decisions of the administrative authorities.
THE LAW
19. The applicants complained that the revocation of the company’s licence to operate and subsequent transfer of its premises to the administration had been in violation of their rights under the Convention. In this regard they relied on Articles 6, 7 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
20. The Government contended that the applicants Mr Nasreddin Aliev and Mrs Hakikat Alieva had not been parties to the proceedings before the domestic courts. Therefore, they cannot be regarded as being entitled to apply to the Court.
21. However, the Court does not deem it necessary to examine the victim status of these applicants under Article 34 of the Convention since the application is in any event inadmissible for the following reasons:
A. Non-communication of the Chief Public Prosecutor’s written opinion
22. The applicants complained that the non-communication of the Chief Public Prosecutor’s written opinion during the appeal proceedings before the Supreme Administrative Court had violated their right to an adversarial and fair hearing. In this respect, they relied on Article 6 § 1 of the Convention.
23. The Court notes that it has already examined the same issue in the case of Kılıç and others v. Turkey ((dec.), no. 33162/10, §§ 19‑23, 3 December 2013) and considered that the applicants had not suffered a significant disadvantage. Accordingly, it has declared this complaint inadmissible in accordance with Article 35 § 3 (b) of the Convention.
24. Having in particular regard to the content of the respective written opinion filed by the Chief Public Prosecutor in the proceedings before the Supreme Administrative Court (see paragraph 10 above), the Court finds no particular reasons in the present application which would require it to depart from its findings in the aforementioned case.
25. In the light of the foregoing, this complaint is inadmissible and must be rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
B. Other Complaints
26. The applicants raised further complaints under Article 6, 7, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
27. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
28. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 November 2017.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy