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SECOND
SECTION
CASE OF BALTUTAN AND ANO İNŞAAT VE TİCARET LTD. ŞTİ
v. TURKEY
(Application
no. 9522/03)
JUDGMENT
STRASBOURG
6
October 2009
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 Baltutan and Ano İnşaat ve Ticaret Ltd.
Şti 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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9522/03) against the
Republic of Turkey lodged on 4 December 2002 with the
Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Mr Naci Baltutan
(Balkar),
a Turkish national, and ANO İnşaat ve Ticaret Limited
Şirketi, a company founded by the first applicant and registered
in Turkey (“the applicants”). The
applicants were represented by Ms A. Bıçak and Mr K.
Berzeg, lawyers practising in Ankara. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
7 October 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1934 and lives in Ankara. The second
applicant is a construction company registered in Turkey.
- On
10 October 1990 the applicant company brought a civil action before
the Seventh Chamber of the Ankara Civil Court against the National
Water Board (Devlet Su İşleri) to recover the monies
owed to it under a construction contract (case no. 1990/584).
- On
27 December 1993 the Ankara Civil Court awarded the applicant
company's claim in full, plus interest.
- On
18 November 1994 the Court of Cassation quashed the judgment of the
first-instance court on procedural and substantive grounds.
- On
16 March 1995 the applicant company brought an additional action
against the National Water Board before the Eighth Chamber of the
Ankara Civil Court in relation to the latter's default in certain
other financial undertakings under the aforementioned construction
contract (case no. 1995/255).
- On
28 September 1995 the Eighth Chamber of the Ankara Civil Court
decided to join case no. 1995/255 with case no. 1990/584 pending
before the Seventh Chamber of the Ankara Civil Court.
- On
15 December 1998, 12 September 2000 and 5 July 2001 the Ankara Civil
Court rendered three separate judgments on the case, all of which
were quashed by the Court of Cassation on 20 May 1999, 6 February
2001 and 27 December 2001 respectively on procedural and substantive
grounds, including erroneous calculations, resulting in the remittal
of the case to the Ankara Civil Court each time.
- On
19 April 2002 the Ankara Civil Court examined the case for the fifth
time and awarded the applicant company's claim in part, together with
interest.
- On
6 June 2002 the Court of Cassation upheld the judgment of the
first-instance court with certain minor technical amendments.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention. The
Government contested that argument.
- The
period to be taken into consideration began on 10 October 1990 and
ended on 6 June 2002. It thus lasted eleven years, seven months and
twenty-nine days for two levels of jurisdiction, which examined the
case ten times in total.
- As
regards the admissibility of the application, the Government argued
that the applicants had failed to exhaust domestic remedies within
the meaning of Article 35 § 1 of the Convention. They submitted
that the applicants had failed to raise this complaint before the
domestic courts.
- The
Court notes that it has already examined and rejected this objection
in similar cases (see, for instance, Erin v. Turkey,
no. 71342/01, §§ 18 21, 10 August 2006). The
Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. Consequently, the
Court rejects the Government's objection.
- The
Court notes that the remainder of 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.
- As
for the merits, the Government maintained that the proceedings could
not be considered to have been unreasonably long, particularly in
view of the complexity of the case and the number of times it was
examined. They further argued that the applicants had contributed to
the prolongation of the proceedings as they used the appeal procedure
as a delaying tactic.
- 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 v. France [GC], no. 30979/96, § 46,
ECHR 2000 VII). The Court notes particularly in this regard that
the Court of Cassation quashed the judgment of the first instance
court as many as four times. The Court reiterates with regard to the
repeated quashing of the lower courts' decisions that since the
remittal of cases for re-examination is usually ordered as a result
of errors committed by lower authorities, the repetition of such
orders within one set of proceedings discloses a deficiency in the
operation of the legal system (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003, and Falimonov
v. Russia, no. 11549/02, § 58, 25 March 2008).
- 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 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 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages, and costs and expenses
- The
applicants claimed 61,659,258 United States dollars (USD)
(approximately 46,280,310 euros (EUR)) in respect of pecuniary damage
for the loss they suffered as a result of the delay in the
proceedings. The applicants also claimed USD 20,000,000
(approximately EUR 15,011,630) for non-pecuniary damage and USD
100,000 (approximately EUR 75,000) for costs and expenses
incurred before the domestic courts and the Strasbourg institution.
The applicants did not submit any documents in support of their
claims regarding costs and expenses.
- The
Government contested these claims as being unsubstantiated and
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicants must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards them
EUR 8,400 jointly under that head.
- As
regards the applicants' claim for costs and expenses, the Court makes
no award under this head as the applicants have not produced any
documents in support of their claims.
B. 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 8,400
(eight thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Turkish liras at the rate applicable at the date of settlement;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
