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SECOND
SECTION
CASE OF AZİZ AYDIN ARSLAN v. TURKEY
(Application
no. 28353/02)
JUDGMENT
STRASBOURG
2
December 2008
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 Aziz Aydın Arslan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28353/02) 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, Mr Aziz Aydın Arslan (“the applicant”),
on 23 May 2002.
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
19 March 2007 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 FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Istanbul.
- In
1988 the applicant was recruited by Türkiye Emlak Bankası
A.Ş., a state-owned bank (hereinafter “the Bank”).
In 1991 he was appointed to the post of deputy director in charge of
credit cards.
- On
an unspecified date, an investigation was carried out as a result of
fraudulent acts in the Topkapı branch of the Bank.
1. The compensation proceedings against the applicant
- On
27 January 1994 the Bank brought an action in the 9th
Chamber of Istanbul Court of Commerce claiming compensation from the
applicant and seven other employees for having caused losses as a
result of irregular transactions.
- In
June 1995 the Bank filed another action in the 4th Chamber
of the Istanbul Court of Commerce claiming more compensation.
- On
an unspecified date, the two actions were joined at the 9th
Chamber of Istanbul Court of Commerce.
- On
18 November 1999 the 9th Chamber of Istanbul Court of
Commerce decided that it had no jurisdiction ratione materiae
and that the case fell within the jurisdiction of the labour courts
since it concerned a dispute between the employer and employees. This
decision was upheld by the Court of Cassation on 10 May 2000.
- On
23 October 2001 the Istanbul Labour Court dismissed the action in
respect of the applicant and six other employees considering that no
fault could be attributed to them. The court however found that the
director of the Topkapı branch of the Bank was responsible for
the losses in question. It therefore ordered him to pay a certain
amount of compensation to the Bank.
2. The criminal proceedings against the Director of the
Bank
- Meanwhile,
criminal proceedings were brought against the director of the Topkapı
branch of the Bank and three other persons for having committed a
fraud. The applicant and the Bank intervened in these proceedings as
a third party. On 9 July 1999 the Bakırköy Assize Court in
Istanbul convicted the director and sentenced him to one year's
imprisonment for having abused his duty. It however acquitted the
other accused. The applicant appealed against this judgment arguing
that the punishment imposed on the director was lenient.
- On
29 May 2001 the Court of Cassation quashed the above judgment.
- On
31 December 2004 the Bakırköy Assize Court terminated the
criminal proceedings against the director since they were
time-barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the compensation 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
period to be taken into consideration began on 27 January 1994 and
ended on 23 October 2001. It thus lasted approximately seven years
and nine months for one level of jurisdiction.
A. Admissibility
- The
Government maintained that the applicant had failed to exhaust
domestic remedies since he had failed to raise the substance of his
complaint before the domestic authorities.
- The
applicant argued that the application should be declared admissible.
- The Court reiterates that it has already examined and
rejected, in previous cases, similar objections of the Government as
regards the alleged failure to exhaust domestic remedies (see, in
particular, Karakullukçu v. Turkey, no.
49275/99, §§ 27-28, 22 November 2005). The Court finds no
particular circumstances in the instant case, which would require it
to depart from its findings in the above-mentioned application. It
therefore rejects the Government's objection on non-exhaustion
- In
view of the above, the Court considers that the application 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. 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
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. He claimed a further 2,000 new Turkish Liras
for the pecuniary damage which he incurred during the proceedings
before the domestic courts.
- The
Government contested these 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 considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards award
him EUR 6,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 750 for the costs and expenses incurred
before the Court.
- The
Government submitted that the amount claimed was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600 for costs and
expenses incurred for the proceedings before the Court.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) 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,
the following sums, to be converted into the national currency of the
respondent Government at the rate applicable at the date of
settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 2 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
