SECOND SECTION
DECISION
Application no. 63398/10
ARI-TEM İNŞ. TEM. GÜV. YEMEK ÜRT. HİZ. TEKS. ZİRAİ İLAÇ TAAH. SAN. VE TİC. LTD. ŞTİ.
against Türkiye
The European Court of Human Rights (Second Section), sitting on 30 August 2022 as a Committee composed of
Egidijus Kūris, President,
Pauliine Koskelo,
Gilberto Felici, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 63398/10) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 October 2010 by a Turkish limited liability company, Arı-Tem İnşaat Temizlik Güvenlik Yemek Üretim Hizmetleri Tekstil Zirai İlaç Taahhüt Sanayi ve Ticaret Limited Şirketi (“the applicant company”), registered in Türkiye, which was represented before the Court by Mr M. Ağaçhanlı, a lawyer practising in Diyarbakır;
the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns an alleged breach of the applicant company’s right of access to a court in violation of Article 6 § 1 of the Convention, stemming from the domestic courts’ refusal to examine its actions seeking the cancellation of payment orders imposed on it, comprising an amended tax assessment and a tax penalty in respect of each month of 2002. The domestic courts dismissed the applicant company’s actions on account of its failure to comply with the statutory time-limit for lodging such actions, in that its employee (D.Ç.) had been duly served with notice of the payment orders (“the notices”) at its registered address on 11 December 2007.
THE COURT’S ASSESSMENT
2. The applicant company complained that there had been a breach of its right of access to a court, alleging that it had not been duly served with the notices, as D.Ç. had not been its employee and that the address indicated as belonging to it on the notifications of service had not been correct.
3. The Government raised several preliminary objections and invited the Court to declare the application inadmissible. In particular, the Government argued, for the following reasons, that the applicant company had abused its right of application. Firstly, the applicant company had failed to submit that it benefitted in 2014 from Law no. 6552, which enabled it to restructure some of its debts stemming from the payment order for July 2002. As a result, the administrative authorities had cancelled 90% of the applicant company’s tax debts and terminated the enforcement proceedings instituted against it, in exchange for an agreement on its part to waive any action in that connection. Similarly, the Government asserted that the applicant company had restructured the remainder of its debts under Law no. 7326.
4. The Government further submitted that, when the present application was lodged, the applicant company had also concealed the facts that (i) D.Ç. had been working for the applicant company for one year leading up to the date when the notices were served; (ii) when the notices were served, D.Ç. had been employed by a company belonging to relatives of the applicant company’s partners; and (iii) five other employees of the latter company had also previously worked for the applicant company.
5. The applicant company submitted that the Government’s observations did not reflect the truth, but without substantiating this statement.
6. The Court reiterates that an application may be rejected under Article 35 § 3 of the Convention as an abuse of the right of individual application if, among other reasons, an applicant submits incomplete or misleading information, in particular if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013, with further references). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Safaryan v. Armenia (dec.), no. 16346/10, 14 January 2020, and compare Belošević v. Croatia (dec.), no. 57242/13, 3 December 2019).
7. The Court notes that in its application lodged on 11 October 2010, the applicant company complained of a breach of its right of access to a court, arguing that the domestic courts had erroneously regarded its actions as having been brought outside the statutory time-limit, as they had erred in considering that the relevant period had started to run when the notices were served on its alleged employee, D.Ç. The applicant company’s contention was based on the premise that D.Ç. had neither worked for it nor been known to it.
8. The Court takes note of the Government’s submission that in 2014 the applicant company benefitted from Law no. 6552 in order to settle debts relating to the payment order for July 2002, which was one of the payment orders forming the basis of its application before the Court. Indeed, the relevant domestic authorities had cancelled a substantial part of those debts; in return, the applicant company had waived the actions brought by it in this respect and had paid the remainder of its debts, which had the effect of terminating the corresponding enforcement proceedings. The Government further asserted that the applicant company had restructured the remainder of its debts under Law no. 7326, a fact which was uncontested by the applicant company.
9. The Court further notes that the information provided by the Government showed that D.Ç. had previously worked for the applicant company, as had five other employees, and that there existed family ties between the partners of the two companies (see paragraph 4). The nature of this information is such as to undermine the veracity of the assertion at the heart of the applicant company’s complaint, namely that it had not known D.Ç., despite the fact that she had apparently worked for it at some point before the payment orders in question were served. Consequently, it was such as to prevent the Court from ruling on the case in full knowledge of the facts.
10. On 18 December 2019 the Court, which was unaware of the above circumstances, gave notice of the application to the respondent Government. The Court learned of the above facts only from the Government’s observations of 2 November 2020 and 20 January 2022.
11. In the Court’s view, the above information concerned the very core of the application and was crucial in assessing its admissibility and merits. However, the applicant company failed, without advancing any argument, to divulge that information (see Şevcenco and Timoşin v. the Republic of Moldova (dec.), nos. 35215/06 and 43414/08, 21 April 2020).
12. Accordingly, the Court concludes that the application must be rejected as an abuse of the right of individual petition pursuant to Article 35 §§ 3 and 4 of the Convention.
13. In view of the above finding, the Court is not required to examine the Government’s other preliminary objections or the issue of whether Article 6 of the Convention is applicable in respect of the payment orders in so far as these concerned the amended tax assessments levied on the applicant company.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 September 2022.
Dorothee von Arnim Egidijus Kūris
Deputy Registrar President