SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 109/04 
by POWERACT INDUSTRIES 
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 November 2008 as a Chamber composed of:

Françoise Tulkens, President, 
 
Ireneu Cabral Barreto, 
 
Vladimiro Zagrebelsky, 
 
Danutė Jočienė, 
 
Dragoljub Popović, 
 
Nona Tsotsoria, 
 
Işıl Karakaş, judges, 
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 28 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant company, Poweract Industries, is a private company which is based in Hong Kong. It is represented before the Court by Mr S. Tepe, a lawyer practising in Mersin.

The facts of the case, as submitted by the applicant company, may be summarised as follows.

On 13 March 2002 the applicant company participated in a tender held by the Mersin Enforcement Office (İcra Müdürlüğü). There were no other participants and the applicant company bought 17,000 telephones that had been imported by another private company which had later disappeared without making payment.

On 26 April 2002, after the sale became final, the applicant company requested delivery of the telephones. The Mersin Enforcement Office refused delivery on the ground that the Customs Office had requested, in a letter dated 25 January 2002, that the sale and delivery procedure be annulled on account of outstanding customs duty.

On 2 May 2002 the applicant company filed a complaint with the Office of the Mersin Enforcement Judge (İcra Tetkik Mercii Hakimliği) and requested delivery of the telephones as well as the annulment of the Mersin Enforcement Office’s decision.

On 7 May 2002 the Judge of the Mersin Enforcement Office held that, in accordance with the relevant provisions, the Customs Office could have requested cancellation of the tender before it became final, whereas the law did not provide for the annulment of a tender after the sale had become final.

On 14 May 2002 the Mersin Enforcement Office notified the Customs Office of the above-mentioned decision and requested delivery of the telephones to the applicant company.

On 6 June 2002 the applicant company sent a letter to the Customs Office, requesting delivery of the telephones.

The telephones had still not been delivered when the application was lodged with the Court.

The applicant company’s criminal complaints against three customs officers were to no avail.

COMPLAINTS

The applicant company complained under Article 6 § 1 of the Convention about the refusal of the authorities to institute criminal proceedings against three customs officers.

The applicant company contended that the telephones had not been delivered because of the customs duty claimed by the State on them. In this respect the applicant company relied on Article 14 of the Convention.

The applicant company further alleged under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the non-enforcement of the judicial decision had violated its right to the peaceful enjoyment of its possessions.

THE LAW

1.  The applicant company complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the non-enforcement of the judicial decision in its favour had violated its right to the peaceful enjoyment of its possessions.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant company complained under Article 6 § 1 of the Convention about the refusal to institute criminal proceedings against three customs officers.

The Court observes that neither the Convention nor its Protocols guarantee any right as such to press criminal charges against third persons or have them convicted (see, for example, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4.

3.  Finally, the applicant company contended that the telephones had not been delivered because of the customs duty claimed by the State on them. In this connection the applicant company relied on Article 14 of the Convention.

The Court reiterates that Article 14 is designed to safeguard individuals, or groups of individuals, placed in comparable situations, from any discrimination in the enjoyment of the rights and freedoms set forth in the Convention and the Protocols thereto (see National Union of Belgian Police v. Belgium, 27 October 1975, § 44, Series A no. 19). In other words, this Article affords protection against discrimination “among persons in relevantly similar situations” (see Jaroslaw Wedler v. Poland (dec.), no. 44115/98, 27 May 2003).

The applicant company’s complaint relates to a difference in treatment between the State and individuals in the context of their respective claims over the same goods. However, the State and individuals cannot be considered to be “similarly situated persons”. Moreover, the applicant company did not claim that the State had discriminated against it vis-à-vis other companies. The complaint therefore falls outside the scope of Article 14 and must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Decides to adjourn examination of the applicant’s complaint concerning the non-enforcement of a judicial decision;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens 
 Registrar President

POWERACT INDUSTRIES v. TURKEY DECISION


POWERACT INDUSTRIES v. TURKEY DECISION