Communicated on 13 April 2018
SECOND SECTION
Application no. 75414/10
Dursun Alı KURBAN
against Turkey
lodged on 22 September 2010
SUBJECT MATTER OF THE CASE
The application concerns procurement proceedings in which the applicant was awarded a contract jointly with his partner on 31 October 2006 for an undertaking following a public tender. The applicant and his partner were required to secure the contract each by making a security deposit in the amounts of 160,000 and 200,000 Turkish Liras (TRY) respectively. It appears that on 10 July 2006 the public prosecutor filed an indictment with the Erzurum Assize Court, accusing the applicant of corrupting a previous procurement process (ihaleye fesat karıştırmak). According to the applicant, he only became aware of these proceedings when he was notified of the official commencement of the proceedings (tensip tutanağı) on 16 January 2007, that is to say, after he had participated in the public tender and signed the contract of 31 October 2006.
When the procurement authority was informed of the charges against the applicant, they annulled the contract of 31 October 2006 by their decision of 25 January 2007 and informed the applicant and his partner of their decision to retain the security deposits indefinitely. In their decision they relied on the relevant sections of the Public Procurement Act (Law no. 4734) and the Public Procurement Contracts Act (Law no. 4765) as well as the practice direction for the application of Law no. 4734 (tebliğ). The applicant and his partner brought proceedings before the Trabzon Commercial Court challenging the decision of the procurement authority of 25 January 2007 and requesting the return of their security deposits. The applicant argued that the annulment of the contract and forfeiture of his security deposit solely on the basis that he was charged with a criminal offence, and in the absence of a final judgment establishing his guilt, was not compatible with the principle of presumption of his innocence. The Trabzon Commercial Court dismissed the applicant’s case but granted his partner’s claims, holding that the applicable law and regulations at the time justified the exclusion of the applicant from the procurement process and the forfeiture of the security deposit by the authorities. As regards the applicant’s claim that he had been unaware of the criminal charges against him before his participation in the procurement process, the court held that the applicant had been questioned by the police in the presence of a lawyer in relation to those charges prior to the bidding process and that therefore he could have acted prudently and refrained from participating in the tender.
The applicant complains in substance under Article 6 § 2 of the Convention and Article 1 of Protocol No. 1 about the annulment of the contract of 31 October 2006 and the forfeiture of his security deposit. Notably, he alleges that interference with his right to property was unlawful and contrary to the principle of presumption of innocence.
QUESTIONS tO THE PARTIES
1. Was Article 6 § 2 applicable to the proceedings before the Trabzon Commercial Court in the present case? In the affirmative, was the applicant’s right to presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, was the Trabzon Commercial Court’s sole finding that the applicant had been indicted for a prohibited act which justified his exclusion from the procurement process compatible with the presumption of innocence within the meaning of that provision?
2. Was the forfeiture of the applicant’s security deposit a lawful and proportionate interference with the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, was the domestic law applied and interpreted by the domestic courts sufficiently precise and foreseeable on the conditions of forfeiture? In that respect, how did the domestic courts determine that the applicant’s security deposit could be retained on account of the commencement of criminal proceedings against the applicant with respect to a procurement process unrelated to the one for which the security deposit in question was furnished?
Full & Egal Universal Law Academy