SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 8476/05
by SEVAL TEKSTİL SANAYİ VE MÜMESSİLLİK
DIŞ TİCARET LTD. ŞTİ.
against Turkey
The European Court of Human Rights (Second Section), sitting on
24 June 2008 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 31 January 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant is Seval Tekstil Sanayi ve Mümessillik Dış Ticaret Limited Şirketi, an export company registered in Turkey. It is represented by Mr Ali Akpınar, a Turkish national who lives in Bartın.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
The applicant company was working with a private bank (“the bank”) in its business affairs. On an unspecified date the applicant company requested the bank to apply for a loan from a third bank, which had lower interest rates. The bank provided the applicant company with the loan it had requested, applying its own interest rates.
On 3 December 1997 the applicant company instituted compensation proceedings before the Istanbul 8th Commercial Court and claimed that it had suffered financial loss as the bank had applied its own higher interest rates.
On 16 February 1998 the bank initiated execution proceedings to recover its loan debts against the applicant company as well as Legend Tekstil and Mr Ali Akpınar who had been the two guarantors for the loan. Mr Akpınar was the owner and representative of both companies.
On an unspecified date the applicant company requested that the two cases be joined, which was accepted by the domestic court.
On 8 April 2002 the Savings Deposit Insurance Fund (the SDIF) (Tasarruf Mevduatı Sigorta Fonu) took over the management of the bank, whose permission to operate had been revoked pursuant to relevant domestic law. Therefore the SDIF became a party to the proceedings along with the bank.
On 20 January 2004 the court rejected the bank’s request and awarded the applicant company compensation.
Both parties appealed.
On 18 April 2005 the Court of Cassation quashed the judgment on procedural grounds.
On 17 November 2005 the Istanbul 8th Commercial Court made the procedural corrections and ordered the bank to pay compensation to the applicant company.
Both parties appealed.
On 13 March 2006 the Court of Cassation dismissed the applicant company’s appeal for having been introduced outside the statutory time-limit. However, the Court of Cassation quashed the judgment in respect of the bank, both on the procedure and the merits.
On 30 June 2006 the applicant company requested rectification of the judgment.
On 19 June 2006 the Court of Cassation dismissed the applicant company’s request.
On 21 June 2007 the İstanbul 8th Commercial Court noted that, pursuant to the relevant provisions of the Banking Act, all cases lodged by those banks whose management has been taken over by the SDIF are to be examined by the 1st or 2nd Commercial Courts. The court therefore issued a decision of non-jurisdiction in respect of the case which had been instituted by the bank and had later been joined to that of the applicant company.
On 13 November 2007 the İstanbul 8th Commercial Court rejected the applicant company’s request and stated that the bank’s request was to be examined by the competent commercial court.
On 25 January 2008 the applicant company appealed.
According to the information available in the case file, the litigation is still pending before domestic courts.
COMPLAINTS
The applicant company complained under Article 6 § 1 of the Convention that the length of civil proceedings had exceeded the reasonable time requirement.
The applicant company further alleged that its right to an effective remedy, as well as the right to peaceful enjoyment of possessions, had been breached.
THE LAW
1. The applicant company complained under Article 6 § 1 of the Convention that the length of the proceedings before the İstanbul 8th Commercial Court had been excessive.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant company alleged that its right to an effective remedy as well as its right to the peaceful enjoyment of possessions had been breached by the State, which had taken over the management of the bank. In this respect the applicant company complained that the Istanbul 8th Commercial Court had failed to collect the relevant information, in breach of the principle of equality of arms, and had thus protected the bank. The domestic court had not been impartial in its decision and had acted on prejudice. The applicant company maintained that the public prosecutors who had been aware of the events had not taken any steps to initiate criminal proceedings.
Concerning the applicant company’s complaints about the domestic courts’ evaluation of the circumstances of the case, the Court observes that the proceedings against the applicant company are still pending before the domestic courts. The above complaints under Article 6 of the Convention are therefore premature. Consequently, this aspect of the case is to be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
As for the applicant company’s complaint regarding the failure of the public prosecutors to initiate criminal proceedings, the Court reiterates that the Convention does not, as such, guarantee a right to have criminal proceedings instituted against a third person (see Seregina v. Russia, no. 12793/02, § 99, 30 November 2006). Consequently, this aspect of the case is to be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of civil proceedings;
Declares the remainder of the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy