Communicated on 6 October 2017
SECOND SECTION
Application no. 25018/13
BAYINDIR İNŞAAT TURİZM TİCARET VE SANAYİ A.Ş.
against Turkey
lodged on 1 April 2013
SUBJECT MATTER OF THE CASE
The applicant company had undertaken the works for the construction of a light rail system, which had been tendered by the Metropolitan Municipality of İzmir (“the Municipality”). After the Municipality terminated the construction agreement, the applicant company asked a civil court to appoint experts to determine the value of the works completed. The applicant company then initiated proceedings against the Municipality to recover damages caused by the early termination of the agreement without any valid ground, referring to the sum unpaid by the Municipality as one component of the damages in its petition.
In those compensation proceedings, which form the subject matter of this application, the panel of expert witnesses appointed by the first-instance court noted that the Municipality had valid grounds to terminate the agreement; but endorsed the determination made by previous experts and concluded that the Municipality owed the applicant company TRY 11,631,379.62[1]. The first-instance court, however, rejected the applicant’s claim for damages, including the sum of the works completed, holding that the termination of the agreement had been justified. The applicant company appealed against the decision before the Court of Cassation, which dismissed the appeal on the grounds that the applicant company had not claimed compensation for works completed in the “conclusion and claim” section of its petition and had paid the court fees to claim damages arising from the unjust termination of the agreement only. The applicant company requested the rectification of the decision arguing that it claimed payment for works completed in several parts of its petition, which should be considered as a whole, but the Court of Cassation rejected its request holding that the applicant company had no valid ground to seek rectification.
The applicant company complains under Article 6 § 1 of the Convention that domestic courts did not give sufficient reasoning as to why they refused to award the amounts owed by the Municipality for works completed and did not take into account the findings of the expert witnesses as to the costs incurred for these works. Under the same provision, the applicant company complains that the proceedings before domestic courts were unreasonably long.
QUESTION tO THE PARTIES
Did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:
- Did the reasoning given by the Court of Cassation, during both appeal and rectification proceedings, remedy the deficiency in the reasoning of the first-instance court’s decision having regard to the Court of Cassation’s case law that all claims made in the petition should be addressed regardless of where they are indicated in the petition (see Yargıtay 11. Hukuk Dairesi E. 2005/4465 K. 2006/4580, Yargıtay 14. Hukuk Dairesi E. 2013/1207 K. 2013/3748)?
- Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
[1] Approximately equivalent to EUR 5,388,140.88 on the date of the report.
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