SECOND SECTION
DECISION
Application no. 51868/10
BALAK PETROL OTOMOTİV İNŞAAT MALZEMELERİ TURİZM EMLAKÇILIK İNŞAAT TAAHÜT GIDA TİC. LTD. ŞTİ.
against Turkey
The European Court of Human Rights (Second Section), sitting on 15 May 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 4 August 2010,
Having regard to the declaration submitted by the respondent Government on 22 January 2018 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS
1. The applicant is a construction company and has its seat of business in Adana. It was represented before the Court by Mr İ. Gül, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Upon an inspection, on 18 July 2005 the applicant company, a gas station, was sealed as it did not have the requisite operating licence.
5. On 20 October 2005 an administrative fine was imposed on the applicant.
6. On 20 December 2005 the applicant initiated administrative proceedings before the Supreme Administrative Court seeking the annulment of the fine.
7. On 27 March 2007 the Supreme Administrative Court dismissed the applicant’s case.
8. During the proceedings, the Chief Public Prosecutor at the Supreme Administrative Court submitted his written opinion on the merits of the case. This opinion was not communicated to the applicant.
9. On 5 March 2009 the Supreme Administrative Court upheld the decision of 27 March 2007.
10. On 10 December 2009 the applicant’s rectification request was rejected.
COMPLAINTS
11. The applicant complained under Article 6 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion in the appeal proceedings before the Supreme Administrative Court had violated its right to an adversarial and fair hearing. Under the same heading, the applicant contested that the length of proceedings had been unreasonable and the administrative proceedings had not been fair.
12. Invoking Article 7 of the Convention, the applicant complained that the presumption of innocence principle had been disregarded and the fine at issue had been disproportional.
13. The applicant further alleged under Article 1 of Protocol No. 1 to the Convention that, as a result of the unfair decisions of the domestic courts, its right to peaceful enjoyment of its possessions had been breached.
THE LAW
A. Complaint concerning non-communication of the Public Prosecutor’s written opinion
14. The applicant complained that the non-communication of the Chief Public Prosecutor’s written opinion submitted to the Supreme Administrative Court during the proceedings had violated its right to an adversarial and fair hearing. In this respect, it relied on Article 6 § 1 of the Convention.
15. After the failure of attempts to reach a friendly settlement, by a letter of 22 January 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“ I declare that the Government of Turkey offer to pay the applicant Balak Petrol İnş. Malz. Tur. Emlakçılık İnş Taahhüt Gıda Tic. Ltd. Şti., EUR 400 (four hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.
This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government consider that the absence of communication to the applicant of the public prosecutor’s observation submitted to the Supreme Administrative Court breached its right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no. 33446/02, 27 November 2007). They respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”
16. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
17. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
18. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
19. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about non‑communication of the public prosecutor’s written opinion during proceedings to applicants (see, for example, Meral v. Turkey no. 33446/02, §§ 32-39, 27 November 2007).
20. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
21. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
22. The Court considers that this amount should be converted into currency of respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
23. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike this complaint out of the list.
B. Complaint concerning length of proceedings
24. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
25. The Court observes that a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others ((dec.), no. 4860/09, 26 March 2013) the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
26. The Court has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. It therefore concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. Remaining complaints
27. The applicant raised further complaints under Articles 6, 7 and Article 1 of Protocol No. 1 to the Convention.
28. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 7 June 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy