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SECOND
SECTION
CASE OF GÜNGİL v. TURKEY
(Application
no. 28388/03)
JUDGMENT
STRASBOURG
10
March 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 Güngil 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 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28388/03) 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 Nurcan
Güngil (“the applicant”), on 30 July 2003.
- The
applicant was represented by Mrs İ. İlimoğlu, a lawyer
practising in Ankara. The Turkish Government (“the
Government”) were represented by their Agent.
- On
20 November 2007 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the civil
proceedings. 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
applicant was born in 1958 and lives in Ankara.
- On
2 and 3 May 1995 the applicant deposited a total of
1,537,000,000 Turkish liras (TRL) with Global A.Ş., a
private brokerage firm, and requested the firm to buy Treasury bonds
for her.
- In
September 1995 the applicant contacted B.G., the broker to whom she
had given the money, and asked her whether she had bought the
Treasury bonds on her behalf. B.G. informed the applicant, by way of
a handwritten document, that she had.
- On
15 March 1996 when the applicant went to the office of Global A.Ş.,
she learned that B.G. had used her money not to buy Treasury bonds
but to buy stocks, which had lost their value and therefore the firm
had caused her to lose money.
- On
30 September 1996 the applicant brought a case against Global A.Ş.
and B.G. before the Ankara Commercial Court (Asliye Ticaret
Mahkemesi), requesting the defendants to reimburse the money
which she had deposited with the firm.
- On
27 May 1998 the Ankara Commercial Court partially granted the
applicant's request and ordered the defendants to pay her TRL
942,000,000 with simple interest.
- Both
the applicant and the defendants appealed.
- On
26 October 2000 the Court of Cassation quashed the judgment of 27 May
1998. The case was subsequently remitted to the Ankara Commercial
Court.
- On
7 November 2001 the Ankara Commercial Court once again partially
granted the applicant's request and ordered Global A.Ş. and B.G.
to pay her TRL 1,512,000,000 with simple interest.
- The
applicant and Global A.Ş. appealed.
- On
10 October 2002 the Court of Cassation upheld the judgment of
7 November 2001.
- On
13 January 2003 the applicant requested rectification of the Court of
Cassation's decision of 10 October 2002.
- On
11 April 2003 the Court of Cassation dismissed the applicant's
request.
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
period to be taken into consideration began on 30 September 1996
when the applicant lodged an action with the Ankara Commercial
Court and ended on 11 April 2003 when the Court of Cassation
dismissed the applicant's request for rectification of its decision.
It thus lasted six years and six months before two levels of
jurisdiction which examined the case five times.
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
Government maintained that the proceedings could not be considered to
have been unreasonably long in total or to have been prolonged
unnecessarily due to a fault attributable to the State.
- The
applicant maintained her allegations.
- 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 notes that although the period in question does not prima facie
appear to be excessive in view of the number of examinations and the
complexity of the case, it observes that the first appeal examination
conducted by the Court of Cassation took two years and five months.
Following the second judgment given by the first-instance court on
7 November 2001, the Court of Cassation once again examined the
appeal request in eleven months and the request for rectification of
the decision in three months. Thus, for more than half of the total
period of time, the proceedings were pending before the Court of
Cassation, which carried out its examinations by way of a written
procedure.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see, among other examples, Hayrettin Kartal v.
Turkey, no. 4520/02, §§ 18-21, 20 October 2005).
- 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 finds 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 12,500 euros (EUR) in respect of pecuniary damage.
The applicant maintained that the amount which had been reimbursed to
her by the Ankara Commercial Court did not compensate her for her
financial loss as a result of the low interest rate applied despite
the high inflation in Turkey. She further claimed EUR 2,500 in
respect of non pecuniary damage.
-
The Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Kingsley v. the United
Kingdom [GC], no. 35605/97, § 40, ECHR
2002 IV). It therefore rejects this claim. However, the Court
considers that the applicant must have sustained some non-pecuniary
damage. Ruling on an equitable basis, it awards her full claim of EUR
2,500 under that head.
B. Costs and expenses
- The
applicant also claimed 680.44 new Turkish liras (TRY) (approximately
EUR 355) for the costs and expenses incurred before the domestic
courts and TRY 2,377.7 (approximately EUR 1,235) for those incurred
before the Court. The costs and expenses claimed by the applicant
consisted of domestic court fees, legal fees based on the Turkish Bar
Association's recommended fee list, as well as stationery and postal
expenses. She submitted various invoices to substantiate her expenses
but provided no additional documentation regarding her legal costs,
such as a contract, a fee agreement or a breakdown of the hours spent
by her lawyer on the case.
-
The Government contested these claims.
- 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 much of the costs so claimed. The
Court therefore awards only EUR 35 in respect of her documented costs
and expenses.
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
applicant's right to a fair hearing within a reasonable time
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the civil proceedings;
3. 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, the following amounts, to be
converted into the national currency of the respondent Government at
the rate applicable at the date of settlement:
i)
EUR 2,500 (two thousand five hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
ii)
EUR 35 (thirty-five euros) plus any tax that may 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
