SECOND SECTION
CASE OF BEŞERLER YAPI SAN. VE TİC. A.Ş. v. TURKEY
(Application no. 14697/07)
JUDGMENT
STRASBOURG
24 September 2013
This judgment is final but it may be subject to editorial revision.
In the case of Beşerler Yapı San. ve Tic. A.Ş. v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Peer Lorenzen, president,
András Sajó,
Nebojša Vučinić, juges,
and Atilla Nalbant, Acting Deputy Section Registrar,
Having deliberated in private on 3 September 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 14697/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Beşerler Yapı San. ve Tic. A.Ş. (“the applicant”), on 23 March 2007.
2. The applicant was represented by Mr M. Erol, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 27 August 2009 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant is a construction company, a legal entity, based in Istanbul.
5. On 7 May 1999 a traffic insurance company lodged a case with the Fatih Civil Court of First Instance against the applicant company, claiming compensation on account of a traffic accident.
6. On 16 July 2002 the court granted the plaintiff’s claim and subsequently the applicant company appealed that decision.
7. On 4 December 2003 the Court of Cassation quashed the decision of the court on the grounds that the applicant company’s right to examine witnesses against it was breached.
8. On 29 June 2004 the Fatih Civil Court of First Instance, to which the case had been remitted, after having examined the witnesses once again accepted the plaintiff’s request.
9. On 13 March 2006 the Court of Cassation upheld the decision.
10. On 21 September 2006 the Court of Cassation dismissed a request by the applicant company for rectification of the judgment.
11. On 2 November 2006 the decision of the Court of Cassation was notified to the applicant company.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. 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, which reads as follows:
“In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by a... tribunal...”
13. The Government contested that argument.
14. The period to be taken into consideration began on 7 May 1999 and ended on 21 September 2006. The proceedings lasted approximately seven years and four months before two instances.
A. Admissibility
15. The Court observes that a new domestic remedy have been established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies as a new domestic remedy had been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
16. The Court further recalls that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could pursue the examination of the applications of this type which were already communicated to the Government. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy.
17. In light of the above, the Court decides to pursue the examination of the present application. However, it notes that this conclusion is without prejudice to an exception that may ultimately be raised by the Government in the context of other communicated applications.
18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Ümmühan Kaplan, cited above, § 49).
20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
21. There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
22. The applicant complained under Article 13 of the Convention that there was no effective remedy under Turkish law whereby he could have contested the length of the proceedings brought against him.
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...”
23. The Government contested the argument.
A. Admissibility
24. The Court notes that this complaint is linked to those examined above and it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
25. The Court has examined similar issues in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh v. Turkey, no. 21086/04, §§ 35-38, 16 July 2009, and Ümmühan Kaplan, cited above, §§ 56‑58). It finds no reason to depart from that conclusion in the present case.
26. The Court accordingly concludes that there has been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION
27. The applicant claims without invoking any particular provision of the Convention that the amount awarded lost its value due to the length of the proceedings. This complaint must be considered under Article 1 of Protocol No. 1
28. The Government contested that argument.
29. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
30. Having regard to its finding under Article 6 § 1 (see paragraphs 16‑18 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194‑C).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
31. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant company further complains that it was denied a fair hearing as it could not examine the witnesses against it. This complaint must be examined only under Article 6 § 1 as the proceedings are not criminal.
32. The Court of Cassation quashed the decision of the first instance court, holding that the Fatih Civil Court of First Instance had failed to carry out the necessary examination about the witnesses against the applicant company and the cases were remitted to the first-instance court. Subsequently the court examined the applicant company’s witnesses in the light of the evidence submitted to it. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
34. The applicant claimed no amount in respect of non-pecuniary damages. Accordingly, the Court considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Articles 6 § 1, 13 of the Convention and Article 1 of Protocol No.1 to the Convention concerning the length of proceedings, the lack of effective remedies and the right to the peaceful enjoyment of its possession in that respect admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1;
Done in English, and notified in writing on 24 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Atilla NalbantPeer Lorenzen
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy