SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 43475/02
by ORİMPEKS MADENCİLİK SAN. VE TİC. LTD. ŞTİ. and ADİL ORGUNER
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 September 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrD. Popović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 5 November 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are the Orimpeks Madencilik San. ve Tic. Ltd. Şti, a construction company registered in Turkey, and its director and main shareholder, M. Adil Orguner, a Turkish national who was born in 1946 and lives in Izmir. They were represented before the Court by Mr A. F. Eren, a lawyer practising in Izmir.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1997 and 1998, the Orimpeks Madencilik San. ve Tic. Ltd. Şti (“the applicant company”) undertook some construction work by virtue of a contract with the Uzay Construction Ltd. (“Uzay”). Uzay thereby owed the applicant company 170,000 American dollars (USD).
In the absence of any payment, on 8 October 1998 the applicant company lodged enforcement proceedings against Uzay for part of the debt owed to it (USD 53,327) before the Izmir Enforcement Office. Uzay appealed and obtained a stay of the enforcement proceedings.
On 17 August 1999, the applicant company sued Uzay before the Istanbul Commercial Court.
During the proceedings, the Istanbul Commercial Court obtained an expert report on the value of the work completed by the applicant company. According to that report, Uzay’s objection to the enforcement of the debt was unjustified.
On 27 February 2001 the Istanbul Commercial Court ruled in favour of the applicant company and lifted the stay of the enforcement proceedings. Its claim was also accepted as regards the remainder of the debt, namely USD 116,673. The court decided that this amount should be paid to the applicant company with interest from the date of the introduction of the case, together with the sum of USD 53,327 which was the earlier amount outstanding before the enforcement office. The remaining legal charges for the case were assessed at 3,376,194 Turkish liras ((TRL), approximately USD 4,925 at the material time).
Uzay did not pay the legal charges within the compulsory two month period stipulated in Article 28 § 1(a) of the Code of Charges (Law no. 492). On 10 May 2001 the Istanbul Commercial Court sent a warrant to the Şişli Revenue Office for the collection of these charges from Uzay, in accordance with Article 37 of Law no. 492.
On 3 April 2002 the applicants’ lawyer petitioned the Istanbul Commercial Court, stating that almost a year had elapsed since the court had issued the warrant to the Şişli Revenue Office, but to no avail. He pointed out that there was a risk that Uzay, which had a definite address at the time of the judgment, would attempt to evade its financial obligations by moving elsewhere. He requested that a copy of the judgment be served on him in order to commence enforcement proceedings before Uzay attempted to hide its financial possessions.
On 26 April 2002 the Istanbul Commercial Court rejected this request on the ground that it was impossible to provide a copy of the judgment unless the charges foreseen by Article 28 (a) of Law no. 492 had been paid.
On 3 May 2002 the applicants petitioned the Şişli Revenue Office regarding the collection of the charges.
On 23 July 2002 the Mecidiyeköy Revenue Office informed the Istanbul Commercial Court that an order for the payment of the charges could not be served on Uzay at the last address known to them. Nevertheless, they added that the search to ensure the notification was continuing.
In a subsequent petition dated 25 August 2004, the applicants asked the Şişli Revenue Office about the progress which had been made in collecting the charges. The Revenue Office did not reply.
B. Relevant domestic law and practice
The relevant Articles of the Law on Charges (Law no. 492 of 2 July 1964) read as follows:
Article 28 § 1 – “The time-limit for the payment of charges”
“The proportional charges set out in scale no. 1 shall be paid within the following periods:
(a) One quarter of the charges for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment’s delivery. The writ shall not be served on the party concerned unless the [court] charges for the judgment and a writ of execution are paid....”
Article 32- “Non-payment of charges”
“As long as the relevant charges for the judicial processes are not paid, the subsequent processes shall not be executed. If the charges which were not paid by the party concerned are paid by the other party, the process shall be continued and the amount shall be taken into consideration in the judgment without the need for any request to this effect.”
Article 37 § 1
“Charges not paid within the periods foreseen in this Law shall be notified by the court or legal office to the relevant tax office within fifteen days from the expiry of the abovementioned time-limit, and the charges shall be recuperated by the tax office. This order shall include the nature and amount of the charge and the tax-payer’s details, including the address.”
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention that the length of the civil proceedings had been excessive and that they had been unable to lodge enforcement proceedings because the judgment given in their favour had not been served on them.
They alleged under Article 13 of the Convention that, because of this, the domestic remedies for their claim had remained ineffective.
The applicants further alleged a violation of Article 14 of the Convention, in that the current practice had amounted to discriminatory treatment to the detriment of the creditors.
Finally, they maintained under Article 1 of Protocol No. 1 that they had been denied the sum they were owed.
THE LAW
1. The applicants complained that they had been unable to start enforcement proceedings as the domestic court had refused to provide them with a copy of the judgment given in their favour. This had also led to the protraction of the proceedings. They relied on Articles 6 § 1 of the Convention.
The Government contended that the applicants had failed to exhaust the domestic remedies available to them, pursuant to Article 35 § 1 of the Convention. For example, the applicants could have applied for legal aid on the ground of their financial situation.
They further maintained that the Istanbul Commercial Court rendered its judgment on 21 February 2001. However, the applicants waited until 3 April 2002 to request its service on them. The Istanbul Commercial Court refused their request on 26 April 2002. However, they applied to the Court on 5 November 2002, i.e. more than six months after that date. Therefore, this aspect of the application was introduced outside the six-month time-limit laid down in Article 35 § 1 of the Convention.
However, the Court does not deem it necessary to determine whether the applicants have exhausted domestic remedies or whether the application was lodged in time, pursuant to Article 35 § 1 of the Convention, since the application is anyway inadmissible for the following reasons.
a) As regards the non-enforcement of the domestic court’s judgment, the Court reiterates that the right to bring proceedings before a court in civil matters (the “right to a court”) within the meaning of the Article 6 § 1 also concerns the right to secure the enforcement of a judgment or decision. Execution of a judgment given by any court must therefore be regarded as an integral part of a trial for the purposes of Article 6 § 1 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997‑II, pp. 510‑511, § 40).
However, that right is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. The Court must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999‑I, and Apostol v. Georgia, no. 40765/02, § 57, ECHR 2006‑...).
The Court notes that, in the present case, by invoking Article 28 (a) of the Law on Charges, the court imposed a financial obligation on the applicants, failure to comply with which barred their access to the judgment and thus to further enforcement proceedings. In this connection, the Court recalls that, in order to determine whether or not a person has enjoyed the right of access, the reasonableness of the amount of the court costs imposed is to be assessed in the light of the particular circumstances of a given case, including the applicants’ ability to pay them, and the phase of the proceedings at which that obligation has been imposed (see Kreuz v. Poland, no. 28249/95, § 60, ECHR 2001‑VI).
In the instant case, the Court observes that the applicants were awarded USD 170,000. The remainder of the legal charges for the case were assessed at TRL 3,376,194 (approximately USD 4,925). In accordance with the provisions of the domestic law, the Istanbul Commercial Court refused to provide the applicants with a copy of the judgment until the charges for the case had been paid. These charges could subsequently have been reimbursed by the unsuccessful party at the end of the enforcement proceedings. Meanwhile, the court took action and sent a warrant to the debtor’s tax office in order to recuperate the legal charges, albeit unsuccessfully.
The Court should therefore consider the reasonable relationship of proportionality between the amount of the charges required and the applicants’ ability to pay them. In this connection, it observes that the amount of the legal charges in question was approximately USD 4,925, which was a small fraction of the amount which had been awarded to them – USD 170,000. Taking into account what was at stake for the applicants at the end of the proceedings, the Court finds it reasonable that the applicants be expected to pay the legal charges to enable their continuation.
Therefore, in the instant case, holding the applicants responsible for the payment of the charges before they could receive a copy of the judgment did not impose an excessive burden on them and did not breach the reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
b) As to the complaint about the length of the proceedings, the Court notes that the main proceedings before the Istanbul Commercial Court began on 6 September 1999 and ended on 27 February 2001. They thus lasted about 14 months. During the proceedings the court obtained a detailed expert report and scheduled regular hearings for the completion of the process. In these circumstances, the length of this period cannot be considered to have been excessive, in contravention of Article 6 § 1 of the Convention.
However, the Court must also consider the period of almost six and a half years which have elapsed since the judgment of 27 February 2001, as the execution of a judgment given by a court should be regarded as an integral part of the “trial” for the purposes of Article 6 § 1. Moreover, the Court has already accepted this principle in cases concerning the length of proceedings (see Zappia v. Italy, judgment of 26 September 1996, Reports 1996‑IV).
Nevertheless, the Court notes that, in the present case, the delay in question was a direct result of the non-execution of the judgment for which it has already found that the national authorities cannot be held responsible.
Consequently, this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicants alleged under Articles 13 and 14 of the Convention, and Article 1 of Protocol No. 1, in conjunction with Article 6 § 1 of the Convention, that the domestic court’s judgment had remained inoperative. This had constituted a breach of their right to the peaceful enjoyment of possessions. Moreover, the debt owed to them had been less protected than debts owed to the State, which had amounted to discrimination.
However, having regard to the conclusions which the Court has reached under Article 6 § 1 of the Convention and in the circumstances of the present case, the Court finds that these complaints are also unsubstantiated and must similarly be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
F. Elens-PassosF. Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy