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THIRD
SECTION
CASE OF AKINCIBAŞI v. TURKEY
(Application
no. 4212/02)
JUDGMENT
STRASBOURG
29
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Akıncıbaşı v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr S. Quesada,
Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4212/02) against the
Republic of Turkey lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Turkish national, Ms Sabriye
Akıncıbaşı (“the applicant”), on 24
April 2000.
- The
applicant was represented by Mr K. Yıldırım, a lawyer
practising in Marmaris. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
19 September 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
- The
applicant and the Government each filed further written observations.
The Chamber decided, after consulting the parties, that no hearing on
the merits was required (Rule 59 § 3 in fine).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1928 and lives in Marmaris.
- In
1984 the applicant concluded a construction contract with Mr G.D.
whereby the applicant was to own 40 % of the flats constructed by Mr
G.D. on her land.
- On
10 July 1985 Mr G.D. and the applicant's legal representative signed
an additional contract and decided to sell the flats to Emlak Bank.
Subsequently on 29 January 1986 the applicant filed an action with
the Ankara Civil Court of First Instance against Mr G.D. She
maintained that her legal representative had no right to sign such a
contract and accordingly requested the annulment of the contract
dated 10 July 1985 and the reimbursement of 132,000,000 Turkish liras
(TRL).
- On
31 May 1990 the 5th Chamber Ankara Civil Court of First
Instance dismissed the case. This judgment was upheld by the Court of
Cassation on 19 June 1991. However, upon the request of the
applicant, on 26 December 1991 the Court of Cassation rectified its
decision of 19 June 1991. The case was accordingly remitted to the
first-instance court.
- In
the meantime, the applicant brought another case against Mr G.D.
before the 12th Chamber Ankara Civil Court of First
Instance and requested liquidation of partnership. On 26 December
1994 the court ordered Mr G.D. to pay TRL 88,260,073 to the
applicant. This judgment became final on 17 May 1996.
- On
28 May 1998 the 5th Chamber of the Ankara Civil Court of
First Instance ordered Mr G.D. to pay TRL 59,000,000, plus interest
at the statutory rate, applicable at the date of the court's
decision, running from 29 January 1986. The court dismissed the
applicant's request for the payment of a further TRL 63,000,000 since
it considered that this amount had already been calculated and
included in the case before the 12th Chamber of the
Ankara Civil Court of First Instance.
- On
10 June 1999 the Court of Cassation upheld the judgment of the
first instance court.
- On
1 December 1999 the Court of Cassation dismissed the parties' request
for rectification.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
Court notes that the proceedings in question began on 29 January
1986 and ended on 1 December 1999. They thus lasted thirteen years
and eleven months for six levels of jurisdiction. The Court's
jurisdiction ratione temporis, however, only permits it to
consider the period of twelve years and eleven months that has
elapsed after 28 January 1987, the date of deposit of Turkey's
declaration recognising the right of individual petition to the
European Commission of Human Rights. It must nevertheless take
account of the state of the proceedings at that time (see Şahiner
v. Turkey, no. 29279/95, § 21, ECHR 2001-IX).
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further invoked Article 6 § 1 (in respect of the
fairness of the proceedings), Article 14 and Article 1 of Protocol
No. 1.
- The
Court finds nothing whatsoever in the case file which might disclose
any appearance of a violation of these provisions. It follows that
this part of the application is manifestly-ill founded and must be
rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
her letter dated 2 May 1997 the applicant claimed a total of 718,534
US Dollars (USD), mainly for her pecuniary loss. The Court further
notes that, in the application form, the applicant had also requested
non-pecuniary compensation on account of the excessive length of the
proceedings.
- The
Government contested the applicant's claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicant must have suffered some
non-pecuniary damage on account of the undue length of the civil
proceedings, which cannot be sufficiently compensated by the finding
of a violation alone. Ruling on an equitable basis, the Court awards
the applicant 4,800 euros (EUR) under this head.
B. Costs and expenses
- The
applicant also claimed USD 5,000 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant has not substantiated
that she has actually incurred the costs claimed. Accordingly, it
makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,800 (four thousand and
eight hundred euros) in respect of non-pecuniary damage to be
converted into New Turkish liras at the rate applicable at the date
of settlement and free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
