In the case of Ateş Mimarlik Mühendislik A.Ş. v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
FrançoiseTulkens,
President,
DanutėJočienė,
DragoljubPopović,
IşılKarakaş,
GuidoRaimondi,
PauloPinto de Albuquerque,
HelenKeller, judges,
andFrançoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 33275/05)
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 legal entity, Ateş Mimarlik Mühendislik A.Ş.
(“the applicant”), on 9 September 2005. The applicant was
represented by Mr B. Kuru, a lawyer practising in Istanbul. The
Turkish Government (“the Government”) were represented by their Agent.
On 6 November 2009the President of the Second
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is an architecture company, a legal
entity, based in Istanbul.
On 10 October 1983 the applicant concluded an
agreement (“the agreement”) with the Federal Republic of Germany (“the GermanState”) for the restoration of the building of the German Consulate in Istanbul.In
Article 9.5.7 of the agreement, the Berlin courts were determined as having
authority to settleany disputes arising out of the agreement. In Article 9.5.8
of the agreement,German law was defined as the principal applicable law.
Besides, the law of the place where the restoration work was to be carried out
was specified as the auxiliaryapplicable law.Moreover, the parties agreed that some
intermediate payments would be made to the applicant on the basis of
estimations in accordance with the progress of the work, and the
ultimatemonetary claims wouldbe determinedafter the transmission of a final statementof
costs(kesin maliyet hesabı).
The applicant was paid some intermediate fees and
expenses incurred while performing its contractual undertakings.
On 21 February 1986 the GermanState terminated
the agreement unilaterally.
In 1987 the applicant brought an action against
the GermanState challenging its unilateral termination of the agreement and
requesting the recovery ofits monetary entitlements.
The BerlinCourt of Appeal (Kammergericht
Berlin) initially resolved the issue of the law applicable to the dispute
between the parties and decided that German law wasapplicable to the case. In
its decision of 20 November 1990 it established that unilateral
termination of the agreement was based on a valid cause. On the other hand, the
court maintained that the applicant’s claim for theoutstanding sum would become
due only after the issue of the final statement of costs, as provided in the
agreement. For this reason, the Berlin Court of Appeal refused the major part
of the applicant’s claim on the ground that the precondition for requestingthe
outstanding amount had not yet been fulfilled.Itawarded the applicant some
partial cost and expenses. Neither of the parties contested this judgment and
thus it became final.
Following the judgment of the Berlin Court of
Appeal, the applicant requested the GermanStateto send the final statement of
costs.
Inaletter of 16 August 1996, the German
authorities stated that the applicantcould only be entitled tosumsfor the servicesprovided
until the termination of the agreement in 1986.
On 7 November 1996 the German authorities drew
up the final statement of costs in the reconstruction project, which consisted
of the items of expenses and their final costs listed from the planning stage
until the termination of the contract. This statement was then sent tothe
applicant.
On 10 January 1997 on the basis of the data
provided in the final statement of costs, the applicant calculated the
difference between the payments made and its entitlement of the final fee of
work. Subsequently, the applicant issued an invoice to the GermanState, indicating 1,700,000 German mark (DEM) as the outstanding amount.
Following the GermanState’s refusal to pay the
amount claimed, on 12 July 1997 the applicantlodged anactionin the Istanbul Beyoğlu Commercial Court,seekingpayment ofthe sum in question. In the light of theprovisions
of the agreementand the judgment of the Berlin Court of Appeal, the applicant
claimed that the final costs had become due.
On 20 October 1998the Istanbul Beyoğlu
Commercial Court observed at the outset that the judgment of the Berlin Court
of Appeal complied with the conditions regarding the recognition (tanıma)
of foreign judgments set out in sub-paragraphs (b) and (c) of section 38 of the
Turkish Private International Law and Procedures Act (Law no. 2675 – “the
TPILPA”). On the other hand, establishing that the subject matter of the two
caseswere different from each other, i.e. the proceedings before the Berlin
Court of Appeal had been relating to the claim of expenses arose during the
delivery of the project and the proceedings filed with the Beyoğlu
Commercial Court was related to the payment of unpaid fee of work, the
first-instance court asserted thatthe Berlin Court of Appeal’s judgment could
not be considered as a definitive and enforceable judgment (kesin hüküm)
for the proceedings which were before it. Eventually, the Istanbul Beyoğlu
Commercial Court examined the case solely in the light of the Turkish law and
held that the amounts payable to the applicant had become time-barred, as in
accordance with Articles 126 and 128 of the Turkish Code of Obligations the
statutory time-limit of five years had started to run from the date of
termination of the contract. In this regard, the Beyoğlu Commercial Courtrefused
the applicant’s claim that its unpaid fee of work had only become enforceable
after the transmission of the final statement of costs in the project, a fact
which had been established by the Berlin Court of Appeal.
On 1 March 1999 the Court of Cassation upheld
the first-instance court’s judgment.
On 24 June 1999 the Court of Cassation agreed to
the rectification of the judgment and remitted the proceedings to the
first-instance court for further analysis as to whether any developmentswhich
would interruptrunning of the time-limit, had occurred in the contractual
relation between the parties.
In the further stages of the proceedings, the
domestic courts no longerexamined theissue of recognition of the judgment
delivered by the Berlin court, on the ground that the parts of the judgment in
question were not subject to the rectification and thus had already become
final.
In the remainder of the proceedings, the
first-instance court and the Court of Cassation continued to examine the case
on the basis of an interpretation of the different provisions of the Turkish
Code of Obligations as regards the application of the statutory time-limit, and
sought to establish which provisions were applicable to the case. Throughout
three rounds of examination, the first-instance and appeal courts disagreed on
the question whether the defendant party had acknowledged paying any amount to
the applicant in its statements of 16 August and 7 November 1996 and whether
that could be considered as implicit withdrawal of the right to plead
prescription(zamanaşımı def’inden
feragat) on the part of the German State.
On 15 May and 23 July 2001 two expert reports
submitted to the Beyoğlu Commercial Court estimating that the applicant be
entitled to 1,408,147 DM.
On 16 October 2001 the Beyoğlu Commercial
Court decided that the final statement of costs issued in 1996 by the German
authorities had been an admission of debt forwarded to the applicant company
which had an effect of an implicit withdrawal on part of the German authorities
of the right to plead prescription of ten years, set out as a general
time-limit in Article 125 of the Turkish Code of Obligations. In this
connection, the court dismissed the German authorities’ pleading for
prescription and held that the applicant was entitled to the award of 1,408,147
DM.
The judgment was,once more, quashed by the Court
of Cassation.
The applicant argued before the said courts on
numerous occasions that the Berlin Court of Appeal’s judgment, having
determined the due date of the applicant’s claim,should have been considered as
conclusive evidence (kesin delil)pursuant to Section 42 of the TPILPA,
in resolving the issue of the starting point forthe time-limit. In this
connection, the applicant maintained that it had a lawful and rightful claim to
full payment of the outstanding costs, as the Berlin courts had not dismissed
its claim on its merits, but had simply deferred its enforceability to a future
date. In addition, the applicant alleged that the translation of the Berlin
Court of Appeal’s judgment lodgedin the case file contained fundamental errors,
which had misled the national courts.
On 30 September 2003 the Istanbul Beyoğlu
Commercial Court held that the statutory time-limit of five years under the
Turkish Law of Obligations had startedto run from the date of termination of
the agreement in 1986, and since then the defendant party had not acknowledged
any debtto be paid to the applicant or any other reason which would interrupt
the running of the time-limit. In its judgment, the court refused the
applicant’s request to havethe translation of the Berlin Court of Appeal’s
judgment corrected,holding that it had no bearing on the outcome of the
proceedings as the issue in question had already been settled. Lastly, while
dismissing its case, the Istanbul Beyoğlu Commercial Court ordered the
applicant to pay 5,736,500,000 Turkish liras (TL)in legal expenses to
the defendant party.
On 30 March 2005 the Court of Cassation gave its
final decision and held that the case was to be dismissed as having been lodged
outsidethe time-limit prescribed by the Turkish Code of Obligations.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
The former Turkish Code of Obligations (Law No.
818) of 8 May 1926 was in force at the time of the domestic proceedings.
According to Article 125 the general time-limit to claim for the recovery of
any debt is ten years, unless a specific provision stipulates another time
limit.
Article 126 provides thatall claims arising from a freelance
contract (istisna akdi) is subjected to the five-year time-limit, with
an exception of the failure of a contractor to discharge his undertakings
agreed in a contracton account of his gross fault or wilful negligence.
Furthermore, Article 128enunciates that running of a time-limit
starts from the date on which a claim has become enforceable.
The Turkish Private International Law and Procedures
Act (“the TPILPA”) (Law No. 2675) of 2 May 1982 was in force at the time of the
domestic proceedings.
Section 2: Applying foreign law
“A judge, ex officio, administers the rules on conflict
of laws and applicable foreign law to a case. Thejudge may request the parties
to assist him/her in the determination of the substance of the applicable foreign
law....”
Sub-paragraphs (b) and (c) of section 38 of the TPILPAstate as
follows:
Section 38: Requirements for enforcement
“The competent court shall give an enforcement decision
provided that the following requirements are fulfilled: ...
(b) the subject of the foreign judgement does not
fall within the exclusive jurisdiction of the Turkish courts;
(c) the foreign judgement does not run counter to
public order; ...”
Section 42 of the TPILPA reads as follows:
Section 42: Recognition
“Ajudgment given by a foreign court can be considered as a
definitive decision or conclusive evidence once the domestic court has determined
that it complies with the requirements for enforcement under the Section 38...”
The Turkish Code of Civil Procedure Act (Law
No.1086) of 18 June 1927was in force at the time of the domestic
proceedings.
Article 237: Definitive Judgment
“A judgment can be considered definitive in proceedings,as long
as the parties, subject matters and causes of the cases are same.”
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant complained that its right of access to a court had been denied,as the
Turkish courtshad unfairly refused to take into account a final foreign
judgment and had failed to examine its case on its merits. It further alleged
that the length of the proceedings had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the Convention.
1. Access to court and fairness of proceedings
The applicant
complained under Article 6 § 1 of the Convention that having failed to consider
the judgment of the Berlin Court of Appeal as conclusive evidence, the Turkish
courts had denied its right to have itscivil claim examined on the merits, in
breach of its right ofaccess to a court and to a fair trial.
The Government contested that argument.
A. Admissibility
The Government asked the Court in their
preliminary objection to dismiss this complaint for failure to exhaust domestic
remedies, as required by Article 35 § 1 of the Convention. They maintained that
the applicant had not raised the complaint before the domestic courts.
The Court observes
that the applicant did raise the substance of the complaint concerning the
denial of access to a court on account of the Turkish courts’ failure to
recognise a foreign judgment both before the first‑instance court and the
Court of Cassation. Consequently, the Court rejects the Government’s
preliminary objection.It furthernotes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention and that it
is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The applicant complained that by dismissing its
case on procedural grounds, the Turkish courts had disregarded the findings of
the judgment adopted by the Berlin Court of Appeal, even though it met the
criteria under the domestic law to qualify for recognition. In this connection,
the applicant argued that the domestic courts had denied its right ofaccess to
a court,which entailstheright to obtain a judicial decision on the merits of
one’scase.
The Government asserted that a foreign court’s
decision could constitute a definitive judgment, by virtue of Article 237 of
the Turkish Code of Civil Procedure, only ifthe parties, subject matter and
causes of the proceedings were thesame.However, the matter in dispute in the
proceedings before the Beyoğlu Commercial Courtwasdifferent from the case
decided by the German courts. For this reason, the Turkish courts had not
acceptedthat the Berlin Court of Appeal’s decision could be qualified as a
definitivejudgment in respect of the proceedings before them.Furthermore, the
Government contended that had the applicant resorted to the Turkish courts for
the enforcement of the Berlin Court of Appeal’s judgment of 20November 1990, it
could have obtained what it was due.
The Court reiterates that the right of access to
a court, as one of the broader concepts of a fair trial,secures to everyone the
right to have a claim relating to their civil rights and obligationsbrought
before a court and to have ajudicial determination on the merits of their case
following a fair hearing (see Golder v. the United Kingdom, 21 February
1975, § 36, Series A no. 18, andPrince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43,
ECHR 2001-VIII). On the other hand, the right to court is not absolute
and may be subjected to procedural rules and regulationsimposed by the national
authorities with a view to ensuring good and expeditious administration of
justice.
Nevertheless, the limitations applied must not
restrict or reduce the access left to the individual in such a way or to such
an extent that the very essence of the right is impaired. Furthermore, a
limitation will not be compatible with Article 6 § 1 of the Convention if it
does not pursue a legitimate aim and if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to be achieved
(see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no.
93).
The Court reiterates that it is primarily for
the national authorities, notably the national courts, to resolve problems of
interpretation of domestic legislation and the role of the Court is limited to
verifying whether the effects of such interpretation are compatible with the
Convention. This applies in particular to the interpretation by courts of rules
of a procedural nature such as time-limits governing the filing of documents or
the lodging of appeals.
The Court notes that while time-limits are in
principle legitimate limitations on the right to a court, as they serve
important purposes, namely to ensure legal certainty and finality of
proceedings and to protectpotential defendants from stale claims, the manner in
which they were applied in a particular case may give rise to a breach of
Article 6 § 1 of the Convention (see, mutatis mutandis, Miragall Escolano and Others v. Spain,
no. 38366/97, §§ 33-39, ECHR 2000-I).
In this regard, the national courts
must, in applying the rules of procedure, avoid both excessive formalism which
would affect the fairness of the procedure, and excessive flexibility that
would result in removing procedural requirements established by law (see Walchli
v.France, no. 35787/03, § 29, July 26, 2007). Indeed, the right of
access to court is breached when the regulation ceases to serve the goals of
legal certainty and good administration of justice and becomes a kind of
barrier to the litigant to have his case decided on the merits by a competent
court (see Efstathiou and others v. Greece, no. 36998/02, § 24, July 27,
2006).
In the case of Selin
Aslı Öztürk v. Turkey, for instance, the Court found that the disputed
domestic law, allowing only the parties to the proceedings to apply for the
recognition of a foreign judgment before the Turkish courts and barring the
possibility for other interested parties to request the same, imposed a
disproportionate burden on the applicant, who was denied any real opportunity
to obtain the recognition of her deceased father’s divorce, and thereby
violated her right of access to a court (no. 39523/03, 13 October 2009).
Turning
to the facts of this case, the Court observes that the applicant company
initially lodged preliminary proceedings before the German courts for the
recovery of its monetary entitlements arising from the agreement concluded on 10
October 1983. The Berlin Court of Appeal refused to
examine the merits of the applicant’s claim for unpaid fee for work, finding
that the requested sumwould not become due until the final statement of costs
was issued, as it had been agreed by the parties in the contract. Following the
transmission of the final statement of costs, the applicant sent an invoice to
the German authorities for the recovery of the outstanding amount. Upon the
latter’s refusal, the applicantlodged a lawsuit before the Turkish courts
seeking the payment of the due sums.
The Court
observes that the Turkish courts determined that the decision of the Berlin
Court of Appeal fulfilled the required criteria set out under the Section 38 of
the TPILPA forthe recognition of a foreign judgment by the domestic courts.
Even so, the Turkish authorities,notwithstandingtheir obligation under Section
42 of the TPILPA, did not consider the Berlin court’sjudgment as conclusive
evidence for the due date of the enforceability of the applicant’s claim.
The Court further observes that the Turkish
courts refused to give effect to the Berlin Court of Appeal’s judgment by
simply holding that the subject matter of the case decided by the German courts
was different from the case before it, thus the Berlin Court of Appeal’s
decision could not be qualified as a definitive judgment in the proceedings
concerned.
The Court notes
that Section 42 of the TPILPA requires that, should a foreign decision meet the
required criteria for recognition,the domestic courts shall give effect to that
decision either as a definitive judgment or as conclusive evidence. However, in
the instant case, although theIstanbul Beyoğlu Commercial Court explicitly
dismissed the first possibility, it did not make any assessment as to whether
the decision in question could be considered as conclusive evidence in the proceedings
before it, despite numerous requests filed by the applicant in this respect.
The Court further notes that having relied on
the conclusionreached by the German courts in the precedingproceedings,the
applicant had a legitimate expectation to claim the outstanding sums when they
became due according to the agreement between the parties. In this regard, it
appears that the applicant reasonably awaited the transmission ofthe final
financial statement drawn up by the GermanStateand only after that requested
payment of the alleged debt. Furthermore, the findings of the German courts in
the proceedings were relevant to the ensuing proceedings before the Turkish
courts, which concerned the applicant’s claims for the payment of outstanding
sums arising from the same agreement.
The Court considers that the development of
common judicial standards and harmonisation of national laws in civil and
commercial matters is an emerging phenomenon in international law. To this end,
the national laws of Convention Contracting States, including Turkey, establish rules on the recognition and enforceability of a foreign judgment in
their domestic systems with a view to ensuring legal certainty in international
relations between private parties and to fostering predictability and coherencein rules and procedures governing those
relations.
However, in the present case, the Court observes
that the conclusion reached by the Turkish courts that the applicant’s claim
was time-barred under the TurkishCode of Obligations as it had become
enforceable at the time of the termination of the contract,contradicted the
findings of the German courts on the same matter and consequently denied the
applicant the opportunity to have the merits of its claim examined. In the
determination of the date on which the applicant’s claim became due and
payable, the Turkish courts disregarded the probative value of the judgment
adopted by the Berlin Court of Appeal in the preliminary proceedings,despitethe
legal obligation prescribed by Section 42 of TPILPA. Nor did the Turkish courts
provide any reasoning for their refusal to recognise the disputed judgment as
conclusive evidence, despite the applicant’s numerous requests in that respect.
In the light of the specific circumstances of
this case, the Court concludes that the Turkish courts’ interpretation and
application of domestic legislation resulted inan impediment to the applicant
to have the merits of its case examined by a judicial authorityin such a way or
to such an extent that the very essence of its right of access to a court is
impaired. Therefore, the Court finds that there has been a violation of Article
6 § 1 of the Convention.
2. As to the length of proceedings
The applicant complained that the length of the
proceedings had been excessive, in breach of the right to a hearing within a
reasonable time as guaranteed under Article 6 § 1 of
the Convention.
The Government contested that
argument,maintaining that the applicant had contributed to the prolongation of
the proceedings by its own acts.
The period to be taken into consideration began
on 12 July 1997 and ended on 30 March 2005. The proceedings thus lastedseven
years, eight months and nineteen days for two levels of jurisdiction.
A. Admissibility
The Government put
forward a preliminary objection concerning the exhaustion of domestic remedies.
The Court reiterates
that it has already examined and rejected similar objections of the Government
alleging failure to exhaust domestic remedies (see 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.
The Court notes that
this complaint is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention noris itinadmissible 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 observes that due to the controversy
on the legal categorisation of evidence and applicable provisions of the
Turkish Code of Obligations, the case was examined by the domestic courts in
several rounds. Despite the fact that the domestic courts adopted eleven
separate decisions, the lengthy proceedings cannot be explained in terms of the
complexity of the litigation,as the courts did not examine the merits of the
case but simply discussed the applicable provisions of the Turkish Code of
Obligations concerning statutory time-limits.The Court further observes that no
part of the delay can be imputed to the applicant.
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,Karakullukçu v. Turkey, no.
49275/99, § 36, 22 November 2005,Ahmet Kılıç v.
Turkey, no.38473/02, §§ 32‑34, 25 July 2006, and Daneshpayeh v. Turkey, no. 21086/04, § 29, 16 July 2009).
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 VIOLATION OF THE CONVENTION
The applicantlastly complained of the fact that it
had sustained financial losses as a result of the Turkish courts’ refusal to
examine the case on its merits. It relied on Article 1 of Protocol No.1 of the
Convention.
The Court notes that this part of the
application is closely linked to the complaint under Article 6 § 1of the
Conventionregarding access to a court and must therefore be declared
admissible.Having regard to its findings above thatthe Turkish courtshave imposed a disproportionate burden on
the applicant which was denied an opportunity to obtain an examination on the
merits of its case, and had thereby violated the applicant’s right of access to
a court, the Court concludes that there is no
need to examine this complaint separately.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 1,469,206 euros (EUR) in
respect of pecuniary damage, referring to its alleged material loss in the
proceedings,and EUR 50,000 in respect ofnon-pecuniary damage.The applicant also
claimed EUR 44,519 for the costs and expenses incurred before the domestic
courts as well as the Court. In this respect, it submitted the Turkish Bar
Association’s tariff of fees for attorneys and referred to the legal expenses
ordered against it by the first-instance court.
The Government contested these claims.
As regards material damage, the Court reiterates
that the most appropriate form of redress for a violation of Article 6 § 1
would be to ensure that the applicant, as far as possible, is put in the
position in which it would have been had this provision not been disregarded
(see Teterinyv. Russia, no. 11931/03, § 56, 30 June 2005, andJeličić
v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑XII). The
Court finds that this principle applies in the present case as well.
Consequently, it considers that the most appropriate
form of redress would be the re-opening of the proceedings in accordance with
the requirements of Article 6 § 1 of the Convention, should the applicant so
request (seeMehmet and Suna Yiğit v. Turkey, no.
52658/99, § 47, 17 July 2007).
As regards non-pecuniary damage, deciding on an
equitable basis, the Court awards the applicantEUR 7,800under this head.
For the costs
and expenses, the Court reiterates that 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. The applicant was ordered to be paid legal expenses to the defendant
party in the domestic proceedings and although the only document submitted in
the case file was the tariff of fees of attorney, having regard to the
complexity of the case and the comprehensive legal work carried out by the applicant’s
lawyer throughout the proceedings, the Court finds it reasonable to award the
applicant EUR 5,000 under this head.
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
1. Declares,by a majority, admissiblethe
complaint under Article 6 § 1 of the
Conventionconcerningthe alleged denial of the applicant’s right of access to
courtand the complaint under Article 1 of Protocol No.1 to the Convention;
2. Declares,unanimously,inadmissible the remainder
of the application;
3. Holds,by four votes to three, that there
has beena violation of Article 6 § 1
of the Convention on account of the denial of the applicant’s rightof access to
court;
4. Holds,unanimously,that there has beena violation
of Article 6 § 1 of the Convention on
account of the excessive length of the court proceedings;
5. Holds,by four votes to three, that there
is no need to examine separately the complaint
under Article 1 of Protocol No.1 to the Convention;
6. Holds,by four votes to three;
(a) that should the
applicant so request,the most appropriate form of redress would be the
re-opening of the proceedings before the domestic courts in accordance with the
requirements of Article6 § 1 of the Convention;
(b) that
the respondent State is to pay the applicant, within three months of the date
on which the judgment becomes final in accordance with Article 44 § 2 of
the convention, the following amounts, to be converted into Turkish liras at
the rate applicable at the date of settlement:
(i) EUR 7,800 (seven
thousand and eight hundred euros), plus any tax that may be chargeable,in
respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(c) 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;
7. Dismisses,unanimously,the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge D.
Popović, I. Karakaş and P. Pinto de Albuquerque is annexed to this
judgment.
F.T.
F.E.P.
PARTLY DISSENTING OPINION OF JUDGESPOPOVIĆ, KARAKAŞ
AND PINTO DE ALBUQUERQUE
1. We dissent on the finding of a violation of
Article 6 of the European Convention on account of the alleged denial of access
to court. In our view, this claim is manifestly ill-founded and should
therefore have been found inadmissible. Consequently, we would not have awarded
any damages or costs and expenses to the applicant. Finally, we do not think
that the Court should have ordered the reopening of the proceedings before the
domestic courts.
2. The firstreason for our disagreement lies in the
letter of the agreement concluded between the applicant and the Federal
Republic of Germany on 10 October 1983, according to which the ultimate
monetary claims of the applicant would be determined after the transmission of
a final statement of costs (Die Schlusszahlung wird fällig wenn die für die
Berechnung der Vergütung massgebenden anrechenbaren Kosten feststehen, der
Auftragnehmer sämtliche Leistungen aus diesem Vertrag erfüllt und eine prüffähige
Rechnung eingereicht hat) and any disputes arising out the agreement should
be dealt with by the Berlin court (Der Gerichtsstand ist Berlin).
3. In the light of the clear letter of the
agreement, which was neither revoked nor altered by the parties, the competent
courts to decide upon the applicant’s final claim regarding payment of the
unpaid work fee were the German courts. The judgment of the Berlin Court of
Appeal of 20 November 1990 confirms this assertion. In fact, the German
court clearly stated that, in accordance with the “tacit legal choice of the
parties” (stillschweigende Rechtswahl der Parteien), German substantive
law was subsidiary to the contract, regard being had, among others factors, to
the choice of the German courts as the courts with jurisdiction to rule on any
disputes arising out of the contract and the choice of the German Federal
Travel Expenses Act (Bundesreisekostengesetz) as the law regulating the
payment of travel costs. In accordance with German substantive law, the Berlin
Court of Appeal rejected the claim for payment of DM 197,196 in respect of
construction plans, travel expenses and tender documents (Bauaufnahmen, Reisekosten
and Ausschreibungsunterlagen)as unfounded (nicht begründet) and
provisionally rejected two interim claims for payment (Zwischenrechnungen)
in the amount of DM 638,803 on the grounds that the sums were not yet due (mangels
Fälligkeit jedenfalls zur Zeit nicht begründet). The court concluded that
the applicant had not submitted a final claim for payment (Schlussrechnung)
and that the interim claims submitted could not be recognised as a final claim
(Ihre Zwischenrechnungen sind nicht als Schlussrechnung anzuerkennen).
This judgment became res judicata.
4. Since the parties did not agree on the final
amount of the fee owed to the applicant by the GermanState after the German
authorities had drawn up the final statement of costs in the reconstruction
project, it was up to the applicant to submit this new dispute to the competent
court, that is to say, the Berlin court.Thus, the Turkish courts had no
competence to rule on this new dispute, which concerned the applicant’s final
claim for payment. Nor could they even enforce the previous judgment of the Berlin court of 20 November 1990, since it was obviously not a final and enforceable
judgment. Still less could they consider that judgment as “conclusive evidence”
of the existence of a final fee owed to the applicant by the German
authorities. In other words, section 42 of the Turkish Private International
Law and Procedures Act was not applicable. The unavoidable conclusion to be
drawn from the above is that there were no legal grounds for the Turkish courts
to assess the applicant’s new claim under the Turkish Code of Obligations and
find it time-barred.
5. In any case, the applicant was not denied access
to the Turkish courts and, what is more, even obtained a judgment in its favour
(see paragraph 20). The case was examined and judgment was given on the merits.
The applicant is not entitled to complain of the outcome of the proceedings,
nor is the Court entitled to lay down guidelines concerning the reasoning of
the Turkish Court of Cassation, which ruled differently from the first-instance
court.
6. The majority found that the conclusion of the
Turkish courts as to when the time-limit for bringing proceedings started
running had denied the applicant the opportunity to have the merits of its
claim examined (see paragraph 48). However, according to the established case-law
of the Court, it is in the first place for the national authorities, and
notably the courts, to interpret domestic law and the Court will not substitute
its own interpretation for theirs in the absence of arbitrariness. This applies
in particular to the interpretation by the courts of rules of a procedural
nature such as time-limits (see Rodoplu v. Turkey, no. 41665/02, § 23,
23 January 2007).
7. Finally, we
agree with the finding of a violation of Article 6 on account of the excessive
length of time it took the Turkish courts to reach a final decision on the
applicant’s claim. Nevertheless, no damages or costs and expenses should be
awarded to the applicant, in view of the fact that he wrongfully initiated
proceedings before the Turkish courts.
