SECOND SECTION
DECISION
Application no. 48603/09
KALDIRIMOĞLU KOLLEKTİF ŞTİ.
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 February 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 May 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant is a construction company registered and located in Bayburt. It was represented before the Court by Mr. D. Kaldırımoğlu, one of the main shareholders of the applicant company.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. In 1991 the applicant company signed a contract with the Ministry of Public Works and undertook the construction of several public buildings. Following a financial dispute, on 6 June 2001 the applicant company filed an action with the Bayburt Civil Court of General Jurisdiction, requesting the court to determine that the company did not have any debt owed to the administrative authorities. On 26 April 2007 the Bayburt Civil Court of General Jurisdiction accepted the applicant’s case. On 2 December 2008 the Court of Cassation upheld this judgment.
4. In the meantime, the applicant brought proceedings before the Bayburt Civil Court of General Jurisdiction for the recovery of debts arising out of the same contract and filed criminal proceedings with the Bayburt Criminal Court against third parties for fraud. The Court of Cassation upheld the judgments of the lower courts, respectively, on 24 October 2005 and 14 February 2011.
B. Relevant domestic law and practice
5. A description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
COMPLAINTS
6. The applicant company complained under Article 6 of the Convention that the length of the civil proceedings had been excessive. He stated that the proceedings that were initiated on 6 June 2001 had lasted until 2 December 2008.
7. The applicant company further complained under Article 6 of the Convention about the outcome of the civil and the criminal proceedings. In this connection, the applicant company alleged that the courts had erred in the evaluation of the evidence and establishment of the facts.
THE LAW
Article 6 of the Convention
1. Length of the proceedings
8. The applicant company complained that the length of the proceedings in dispute had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
9. The Government noted that pursuant to Law no. 6384 a compensation commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as it had not made any application to the compensation commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others ((dec.), no. 4860/09, 26 March 2013).
10. The Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others, cited above, the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
11. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
12. However, taking account of the Government’s preliminary objection with regard to the availability of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others.
13. It therefore concludes that the complaint about the excessive length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Fairness of proceedings
14. The applicant company further complained under Article 6 of the Convention about the outcome of the civil and criminal proceedings in question.
15. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with the Article 35 § 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 March 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy