Communicated on 10 September 2015
SECOND SECTION
Application no. 1065/06
Robert Mackenzie ELLIS against Turkey
lodged on 7 December 2005
STATEMENT OF FACTS
The applicant, Mr Robert Ellis, is a British national, who was born in 1941 and lives in Birkerod. He is represented before the Court by Mr M. An, a lawyer practising in Ankara.
On 11 April 1995 the applicant formed a limited company, N.R. Group Ltd. (“the company”) together with a Turkish partner, N.K., to provide tourist services in Alanya, Turkey.
The company was owned in equal shares by the applicant and his partner, as from 20 April 1995.
The applicant was resident in Denmark and the company was operating from the office in Alanya. Therefore, the applicant relied upon N.K. to manage the company’s business.
Having discovered a number of irregularities and fraud in the management and operation of the company, the applicant appointed a lawyer to pursue his interests regarding the company.
On 19 March 1997 the applicant applied to the Alanya First Instance Court to cancel N.K.’s management authority. On 2 October 1997 the court ordered the cancellation and on 18 May 1998 it appointed a trustee for the company. Meanwhile, it was discovered that the applicant’s partner N.K. had fraudulently transferred the company’s assets to a new company.
On 8 July 1997, the applicant brought two civil cases against N.K. before the Alanya First Instance Court and sought compensation for his losses incurred due to the fraudulent acts of N.K. The Alanya First Instance Court decided to join the compensation cases and to examine them together.
On 17 July 1998, criminal proceedings were brought by the Alanya Public Prosecutor against N.K. concerning his fraudulent acts. At the end of the criminal proceedings N.K. was convicted, however his sentence was suspended according to Law No. 4616 on the execution of sentences in respect of certain offences committed before 23 April 1999 (dated 21 December 2000).
On 7 June 2005, the Alanya First Instance Court accepted the applicant’s compensation claim and granted him the equivalent of 203,000 deutschmarks (DEM) with statutory interest for his losses, to be paid in Euros, and DEM 10,000 in compensation without interest of 40% (inkar tazminatı), to be paid in Turkish Lira (TRY), and ruled that the legal costs and expenses of the proceedings were to be borne by N.K.
On an unspecified day the applicant requested that the judgment be served on him in order to commence enforcement proceedings. The court rejected the request, stating that it was not possible to provide the judgment unless the charge required by Article 28 (a) of Law no. 492 (Code of Charges) had been paid.
The applicant was therefore unable to lodge enforcement proceedings in order to have the above-mentioned judgment executed.
On 7 December 2005 the applicant lodged his application with the Court.
On 1 August 2010, payment of the court costs as a prerequisite to being served with the judgment under Article 28 (a) of Law no. 492 was abolished by Law no. 6009.
According to Law no. 6384, which entered into force on 19 January 2013, a new domestic remedy was established to deal with applications before the Court concerning the length of proceedings and the non‑execution of judgments.
On 2 April 2013, the applicant availed himself of the domestic remedy established by Law no. 6384 and applied to the Compensation Commission in respect of the excessive length of compensation proceedings and the non-enforcement of the judgment.
On 3 July 2013 the Compensation Commission accepted the applicant’s complaint regarding the excessive length of civil proceedings and awarded him TRY 13,950. On the other hand, with regard to the non‑enforcement of the court judgment, the Compensation Commission referred to Law no. 6009 that entered into force on 1 August 2010. It stated that the above-mentioned law abolished the prerequisite of payment of the court costs in order to be served with the final judgment under Article 28 (a) of Law no. 492 and highlighted that the applicant could have applied to the domestic court and would have been served with the final decision following 1 August 2010.
The applicant appealed against the Compensation Commission’s decision to the Ankara Regional Administrative Court. On 18 September 2013, the Ankara Regional Administrative Court rejected the applicant’s appeal.
COMPLAINTS
The applicant complains under Article 6 of the Convention about his inability to initiate enforcement proceedings as the domestic court refused to provide him with a copy of the judgment.
The applicant complains under Article 13 of the Convention that there is no remedy which would prevent the continuation of the violations or to provide him with adequate redress.
The applicant complains under Article 1 of Protocol No. 1 that he did not receive the compensation amount to which he was entitled.
QUESTIONS TO THE PARTIES
Before the amendment of Article 28 (a) of Law no. 492 by Law no. 6009 dated 1 August 2010:
1. Was there a violation of the applicant’s right under Article 6 § 1 of the Convention due to the non-enforcement of the judgment granting him compensation? In particular, did the refusal of the domestic courts to provide the applicant with a copy of the judgment deprive him of an effective “right to a court”?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6, as required by Article 13 of the Convention?
3. Has there been a violation of the applicant’s right under Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the judgment?
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