Resolution CM/ResDH(2009)16[1]
Execution of the judgment of the European Court of Human Rights
Case of Ern Makina Sanayi ve Ticaret A.Ş against Turkey
(Application no 70830/01, judgment of 03/05/2007, final on 03/08/2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the violation of the right to a fair hearing due to the applicant’s impossibility to participate in the proceedings following a notification mistake (violation of Article 6) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2009)16
Information about the measures to comply with the judgment in the case of
Ern Makina Sanayi ve Ticaret A.Ş against Turkey
Introductory case summary
The case concerns the violation of the applicant company’s right to a fair hearing in that it was deprived of the possibility to take part in enforcement proceedings of a foreign arbitral award before the domestic courts due to the lack of a regular notification.
The European Court concluded that “the failure of the commercial registry to transmit to the commercial court the applicant’s current business address as well as the refusal of the Court of Cassation to take into consideration this circumstance deprived the applicant of the possibility to take part in the enforcement proceedings before the domestic courts” (§ 34 of the judgment) (violation of Article 6).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
3 000 Euros
1 000 Euros
4 000 Euros
Paid on 25/10/2007
b) Individual measures
Articles 445§11 and 447§3 of the Code of Civil Procedure allow the reopening of cases following a judgment of the European Court finding a violation.
II.General measures
The violation in this case stemmed from the Court of Cassation’s refusal to take into consideration the failure of the commercial registry. The judgment of the European Court was published and disseminated. A Turkish translation was also posted on the Ministry of Justice’s website at:
/aihm/karar/ernmakina21022008.doc.
III.Conclusions of the respondent state
The government considers that the measures adopted will prevent new, similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1 of the Convention.
[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies
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