BAYINDIR İNŞAAT TURİZM TİCARET VE SANAYİ A.Ş. v. TURKEY

SECOND SECTION

DECISION

Application no. 25018/13
BAYINDIR İNŞAAT TURİZM TİCARET VE SANAYİ A.Ş.
against Turkey

The European Court of Human Rights (Second Section), sitting on 24 March 2020 as a Committee composed of:

Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 1 April 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Bayındır İnşaat Turizm Ticaret ve Sanayi A.Ş., is a construction company incorporated in Turkey (“the applicant company”). The applicant company was represented before the Court by Mr E.A. Yıldırım, a lawyer practising in Ankara.

2.  The Turkish Government (“the Government”) were represented by their Agent.The circumstances of the case

3.  The facts of the case, as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows.Background to the dispute

4.  On 12 April 2005 the applicant company and the Metropolitan Municipality of İzmir (“the Municipality”) signed a contract for the construction of the second stage of the İzmir Light Railway System. According to the terms of the contract, the applicant company was to complete the construction works in 660 calendar days.

5.  On 3 November 2006 the Municipality terminated the construction contract unilaterally on the grounds that the applicant company had failed to comply with the work program despite having previously been warned about the delays in the works.

6.  As a result of the unilateral termination of the construction contract by the Municipality, on an unspecified date, the applicant company brought a declaratory action before the İzmir Magistrates’ Court in civil matters for an assessment of the monetary value of the manufacturing works already carried out in the construction until the date of termination of the contract. By a report of 5 December 2006 the panel of experts, who had been appointed by the İzmir Magistrates’ Court, concluded that the value of the manufacturing works had amounted to 18,793,992 Turkish Liras (“TRY”, approximatively equivalent to EUR 9,742,362 on the date of the report).The proceedings before the İzmir Commercial Court

7.  On 9 November 2006 the applicant company brought an action for compensation against the Municipality before the İzmir Commercial Court. It requested a total of 1,500,000 TRY as compensation for damages caused by the early and unlawful termination of the construction contract, reserving its right to increase those claims in the due course of the proceedings. In the “subject matter” section of its lawsuit petition, the applicant company stated its intention to claim also the manufacturing costs it already incurred during the construction of the works. That being so, both in the “facts” (olay ve açıklamalar) and in the “conclusion and claims” (sonuç ve talepler) sections of the lawsuit petition, the applicant company specified the abovementioned amount as corresponding to the compensation for damages on account of the unjust termination of the contract.

8.  In the meantime, the Municipality lodged a case with the İzmir Commercial Court claiming the costs it had incurred for updating the performance guarantee due to termination of the contract. The Municipality also filed another lawsuit with the same court requesting the payment of expenses it incurred mainly on account of allegedly wrongful acts of the applicant company during the performance of the construction works. The Municipality also claimed the electricity and water debts of the applicant company.

9.  On an unspecified date, the actions lodged by the Municipality were joined to the case lodged by the applicant company.

10.  During the proceedings, the İzmir Commercial Court sought an expert report with a view to determining whether the construction contract had been terminated on valid grounds, and if not, the amount of pecuniary damages sustained by the applicant company.

11.  By their report of 10 March 2009 the panel of experts opined that the Municipality had valid grounds to terminate the contract since at the date of termination, the construction works had been far behind the envisaged work program. The panel concluded that the Municipality owed the applicant company TRY 11,631,379.62 for works completed by the date of termination (approximatively equivalent to EUR 5,388,140.88 on the date of report).

12.  After the communication of the expert report to the parties for their comments it appears that the applicant company did not ask the İzmir Commercial Court for permission to amend its claims in the light of the conclusions of the experts with respect to manufacturing costs.

13.  On 12 November 2009 the first-instance court dismissed the applicant company’s claim for damages holding that the termination of the contract had been justified. Furthermore, the court allowed the claims of the Municipality in respect of the cost it incurred for updating the performance guarantee. Finally, the court decided to disjoin the case in which the Municipality requested the payment of its expenses.

14.  The applicant company appealed against the judgment of the İzmir Commercial Court submitting, inter alia, that the first-instance court did not examine its claims in respect of the manufacturing costs.

15.  On 4 July 2011 the Court of Cassation upheld the first-instance court’s decision with respect to dismissal of the applicant company’s claims for pecuniary damage on the grounds that the termination of the contract had been justified. As regards the applicant company’s submissions with respect to the lack of a determination of the manufacturing costs, the Court of Cassation held that the applicant company had not claimed manufacturing costs in the “conclusion and claims” section of its petition when it lodged the case. It further noted that the applicant company had paid the court fees corresponding to the damages arising from the unjust termination of the construction contract only.

16.  On an unspecified date the applicant company requested the rectification of the decision before the Court of Cassation, arguing that it had claimed the payment of the manufacturing costs in several parts of its petition, which should have been considered as a whole.

17.  On 28 June 2012 the Court of Cassation rejected the applicant company’s request for rectification.Developments after the introduction of the application

18.  In their observations, the Government submitted that the applicant company had brought a new case before the İzmir Commercial Court after the introduction of its application before the Court and had requested the payment of TRY 6,000,000 in respect of the underpaid progress payment, the manufacturing costs and the costs of the materials left on the construction site. It appears that this new case was joined with the case which had been disjoined from the impugned proceedings (see paragraph 13 above).

19.  It further appears that on 27 February 2014 the first-instance court allowed the applicant company’s case holding that the amount claimed by it be paid together with interest.

The proceedings are currently ongoing before the domestic courts.Relevant domestic law and practiceDomestic Law

20.  According to Article 74 of the Code of Civil Procedure (“Law no. 1086”), which was in force at the material time, the civil courts were bound by the claims of the parties and could not award a higher amount than requested. Article 26 of the Code of Civil Procedure (“Law no. 6100”) which entered into force on 1 October 2011 contains a similar provision as the one in Law no. 1086.

21.  In civil proceedings in Turkey, every plaintiff is obliged to pay a portion of the court fees at the time of lodging a statement of claim with a court. Depending on the nature of the case, court fees can be fixed or be calculated as a percentage of the value of the sum claimed. Moreover, plaintiffs are required to indicate the value of the sum they claim where the nature of the case allows such a determination to be made (Article 16 § 3 of the Law on Fees (“Law no. 492”)).

22.  Finally, plaintiffs may be given leave to amend the sums they claimed during the civil proceedings. Such an amendment may only be requested once and before the examination of the case is final. Necessary court fees must be paid corresponding to the sums additionally claimed pursuant to the amendment (Articles 83-86 of Law no. 1086).Relevant Case-Law of the Court of Cassation

23.  The Government submitted examples from the case-law of the Court of Cassation in which it was emphasised that decisions of the courts must be rendered on the basis of the “conclusion and claims” section of the lawsuit petitions. Those examples which pre- and post-date the applicant company’s case demonstrate the established practice of the Court of Cassation requiring the plaintiffs to write clearly what they claim from the courts (see, for example, the decisions of 18 September 2007, 2008/2456 E., 2008/4461 K.; and 22 March 2018, 2017/5000 E., 2018/6177 K.). Furthermore, the Court of Cassation has held the first-instance court to be bound by the amounts on the basis of which the court fees had been paid (see, for example, the decision of 12 September 2017, 2016/1244 E., 2017/7605 K.).

COMPLAINTS

24.  The applicant company complained under Article 6 § 1 of the Convention that domestic courts failed to give sufficient reasons in their refusal to award the manufacturing costs and did not take into account the findings of the expert witnesses as to those costs. Under the same provision, the applicant company complained that the proceedings before the domestic courts had been unreasonably long.

THE LAW

25.  The applicant company complained of a breach of its rights under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“1.  In the determination of his civil rights ..., everyone is entitled to a fair ... hearing within a reasonable time ...”The alleged failure to examine the applicant company’s claims

26.  The applicant company argued that the domestic courts dismissed its claims regarding the manufacturing costs without providing any reasons.

27.  The Government raised a plea of non-exhaustion of domestic remedies. In particular, they submitted that the applicant company brought a case before the civil courts to claim its manufacturing costs, which was still pending before the domestic courts (see paragraphs 18-19 above). Furthermore, the Government argued that the applicant company could not claim to be victim as the İzmir Commercial Court ordered the payment of TRY 6,000,000 to the applicant company in respect of the manufacturing costs and the costs of the materials it left on the construction site. Lastly, the Government submitted that the applicant company had abused the right of individual application since it did not inform the Court about the new case it brought before the domestic courts for the payment of the manufacturing costs and the costs of the materials it had left on the construction site (see paragraphs 18-19 above).

28.  The applicant company did not reply to the Government’s objections on the admissibility of its application but it maintained that the application be examined on the merits.

29.  The Court considers that it is not necessary to examine the objections of inadmissibility raised by the Government because the complaint is in any event inadmissible for the following reasons.

30.  The Court reiterates that the right of access to a court guaranteed by Article 6 § 1 of the Convention does not consist only of a right to institute proceedings, but also of a right to obtain a “determination” of the dispute, or, in other words, to have the claims examined, by a court (see Khamidov v. Russia, no. 72118/01, § 167, 15 November 2007).

31.  Turning to the present case, the Court notes at the outset that in proceedings before civil courts, plaintiffs may be given leave to amend their claims in the course of the proceedings (see paragraph 22 above). In that connection, while it was open to the applicant company to increase its claims in compliance with the findings of the expert report in the proceedings, the Court observes that it did not do so (see paragraphs 6 and 12 above).

32.  Secondly, the Court notes the principle ne ultra petita enshrined in the Code of Civil Procedure (see paragraph 20 above) and the relevant case‑law of the Court of Cassation according to which the civil courts are bound by claims of the parties (see paragraph 23 above). The Court considers in this respect that the applicant company did not claim the manufacturing costs in its lawsuit petition in an unequivocal manner but reserved its right to increase its claims in the due course of the proceedings. In the light of the above rules set out in the Turkish civil procedure and judicial practice, the Court concurs with the Court of Cassation in its finding that the applicant company failed to claim the alleged manufacturing costs in its lawsuit petition (see paragraph 15 above).

33.  In view of the above, the Court considers that it was not necessary for the domestic courts to examine the argument based on unpaid manufacturing costs.

34.  Therefore, the Court finds that this part of the application is to be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.The alleged excessive length of the proceedings before the domestic courts

35.  The applicant company complained that the length of the proceedings had been in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government rejected the allegation.

36.  The Court notes that the period to be taken into consideration began on 9 November 2006 when the applicant company filed its action with the İzmir Commercial Court (see paragraph 7 above), and ended on 28 June 2012 when the Court of Cassation dismissed the applicant company’s request for rectification of the decision (see paragraph 17 above). The period under consideration thus lasted five years and seven months before three instances.

37.  In the Court’s view, regard being had to the criteria established in its jurisprudence (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII) and the nature and complexity of the particular proceedings at issue in the present case, the aforementioned period was not such as to attract the liability of the respondent Government under the Convention (see, mutatis mutandis, Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 186-187, 1 September 2016).

38.  In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected as inadmissible in accordance with the requirements of 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 28 May 2020.

Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident

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