FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36591/97 
by Süleyman MERCÜMEK 
against Turkey

The European Court of Human Rights (First Section), sitting on 5 December 2000 as a Chamber composed of

Mrs W. Thomassen, President
 Mr L. Ferrari Bravo
 Mr Gaukur Jörundsson
 Mr R. Türmen
 Mr B. Zupančič
 Mr T. Panţîru
 Mr R. Maruste, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 20 April 1997 and registered on 20 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Turkish national, born in 1944 and currently living in Istanbul, Turkey.

He is represented before the Court by Mr Ünal Somuncuoğlu, a lawyer practising in Istanbul.

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

The applicant was a client of the Mecidiyeköy branch of the Economy Bank (İktisat Bankası: hereinafter “the defendant”).

On 12 June 1989 the applicant sought to withdraw the balance on the bank accounts which he had opened with the defendant namely, 1,694,424 US dollars (USD) and 166,762 German marks (DEM). The bank refused to comply with his request giving as its reason that there was no longer any balance left on the accounts since all amounts previously deposited had been withdrawn.

The applicant brought legal proceedings against the defendant before the 3rd Commercial Court of Istanbul (Asliye Ticaret Mahkemesi).

During the proceedings the court appointed experts to look into the defendant’s accounts. The experts could not identify the existence of any document or record proving that the applicant had been paid the sum of USD 1,694,424 from his accounts. Although the defendant had not been able at the start of the trial to supply any documents signed by the applicant in the form of bills, checks or payment orders, it submitted a report dated 11 May 1990 indicating the existence of “a general release” (genel ibraname) which the applicant had signed on 4 September 1988 affirming that he had irrevocably released the defendant from its obligation to pay him the money which he had deposited with it.

The applicant contended that the defendant forged the so-called general release after he instituted proceedings against it. He maintained that the defendant, using a typewriter, filled in a blank page which he had signed and lodged with the defendant’s Mecidiyeköy branch. The applicant claimed that he had done so since he had trusted the defendant’s branch manager at the time and considered that this was in the interests of the smooth running of his financial dealings. He noted that the typed wording of general release bore a misspelling of his last name (“Mercimek” instead of “Mercümek”). The applicant argued before the court that notwithstanding the existence of the so-called “general release” of 4 October 1988, the defendant had nevertheless made him a payment from his account no. 787643 on 12 June 1989 in the sum of USD 45,000.

During the proceedings before the 3rd Commercial Court of Istanbul the applicant requested that witnesses be heard by the court on the matter of the validity of the release. He submitted an expert legal opinion to the court stating that the court could only properly assess the applicant’s claim by hearing evidence other than the general release letter. The applicant’s request was refused.

The experts commissioned by the 3rd Commercial Court of Istanbul on the matter of the alleged falsity of the general release letter stated in a report dated 15 February 1995 that they “did not find any proof that the disputed document had been prepared later by filling in blank pages signed by the applicant”. The experts who investigated the history of the applicant’s deposit accounts found that “the bank had paid all sums of money, totalling USD 1,703,248, without the applicant having signed any check, payment order or other document”. As to the “general release letter” the experts concluded that: “the existence of this release may legitimately close the accounts and bring to an end the bank’s obligation to pay money out of them.” The experts also stated that the general release letter had been signed by hand whereas the actual wording of the letter had been typed. This made it impossible to determine whether the wording used in the general release letter had been inserted after it had been signed by the applicant, as he alleged.

In its judgment of 21 April 1995, the 3rd Commercial Court of Istanbul rejected the applicant’s claim. It found inter alia that there was no evidence to prove that the release given to the defendant by the applicant was a blank page which had been filled in later or that he had intended a signed blank page to be used by the bank for another transaction. The court found that although some of the documents concerning the payments made to the applicant did not bear the applicant’s signature these documents were nonetheless valid having regard to his general release letter of 4 October 1988.

The applicant appealed to the Court of Cassation arguing that the judgment of the 3rd Commercial Court had not clarified a number of legal issues. The applicant requested the Court of Cassation to examine the merits of these issues and to address them specifically and separately.

The 19th Civil Chamber of the Court of Cassation upheld the decision of the 3rd Commercial Court of Istanbul. The Court found that the applicant’s release letter relieved the defendant from the obligation to make payments to him from his account. The court considered the applicant’s argument that he had given the release to the defendant in the form of a blank page for the purposes of a banking transaction. The court noted that the 3rd Commercial Court of Istanbul appointed a group of experts to inquire into the allegation that the document had been unlawfully filled in at a later stage. However, the court-appointed experts found no evidence of forgery. The court also considered the issue whether the document could be regarded as a lawful release under Turkish law. It noted that, according to doctrine, a release of debt was accepted as one of the ways of discharging a debt. The court concluded that the release letter showed that it was the intention of the applicant to discharge the debt owed to him by the defendant. Furthermore the release had complied with the requirements of the relevant provisions of the Code of Obligations (Borçlar Kanunu).

One judge dissented, being of the opinion that the first instance court should have allowed witnesses to be heard on behalf of the applicant. The judge also noted that there were indications that the general receipt could have been forged and that it was not normal practice for a bank to pay out money to a client without having a trace of his signature. The judge was not prepared to accept the defendant’s argument that it had paid money in good faith from the applicant’s account after the date indicated on the general release letter.

On 8 November 1996 the 19th Civil Chamber of the Court of Cassation rejected the applicant’s request for rectification of its earlier judgment.

COMPLAINTS

The applicant complains that the domestic courts did not deal with the arguments which he adduced before them, failed to gave reasons for their decisions and failed to respect the principle of equality of arms. He invokes Article 6 § 1 of the Convention in this connection.

The applicant, with reference to Article 6 § 3 (d) of the Convention, further complains that the domestic courts refused to allow witnesses to be heard who could have testified that the defendant bank had tampered with the blank document which bore his signature and that the general release form was therefore invalid.

The applicant also complains that the President of the 3rd Commercial Chamber of Istanbul lacked impartiality since she later became a member of a law firm which represented the interests of the defendant bank. He relies on Article 6 § 1 of the Convention.

THE LAW

The applicant maintains that he did not receive a fair trial in the determination of his civil rights with respect to the defendant bank and that Article 6 of the Convention had been breached in consequence. That provision provides to the extent relevant:

“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.”

1.  Applicability

The Government state as a primary submission that Article 6 is not applicable to the proceedings at issue since they related to a commercial dispute between private parties.

The Court does not accept the Government’s submission that Article 6 of the Convention is inapplicable to the proceedings at issue. What was at stake was a genuine and serious dispute about the applicant’s claim to money which he alleged was being wrongfully withheld from him by the defendant. There can be no doubt that the right asserted by the applicant was of a pecuniary nature and therefore a “civil right” within the meaning of Article 6 § 1.

Article 6 is applicable.

2.  Compliance

(a) The Government state that the fairness of the proceedings cannot be called into question. In the first place, the domestic court assembled all the evidence and appointed a group of experts to investigate the merits of the applicant’s allegations. Secondly, the 3rd Commercial Chamber of Istanbul as well as the Court of Cassation on appeal gave relatively lengthy reasoned judgments which addressed the main points of the applicant’s arguments. Thirdly, the Government claim that the principle of equality of arms “cannot be applied to a commercial dispute where civil judicial procedure is being applied”.

The applicant disputes the findings of the experts appointed by the 3rd Commercial Chamber of Istanbul. He submits that the experts unquestionably accepted all the points made by the defendant bank in its defence. In particular, the experts failed to explain why the bank had made multiple payments to him from his account without any record being kept of such transactions.

The applicant maintains that the trial court should have heard the evidence of his witness, an official working for the defendant, who could have testified that the general release document relied on by the defendant was forged after he had instituted proceedings against the defendant. The court thus deprived itself of the opportunity to hear that he had entrusted this official with a number of documents – some blank, some bearing his signature – in order to facilitate the applicant’s banking transactions and that one of the blank documents was later filled in by the defendant. The applicant draws attention to his claim that the expert report was not conclusive of the issue of whether or not the document had been unlawfully tampered with.

The Court observes that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2928-29, § 56).

Against that background the Court observes that the applicant’s case before the 3rd Commercial Chamber of Istanbul turned on the validity of the release letter which he had allegedly given to the bank. It considers that the domestic court specifically addressed the applicant’s contention that he had given a blank page to the defendant’s branch manger which had been later tampered with. The court rejected that argument with reference to the findings of the experts who had been appointed to investigate the matter. The Court further observes that the Court of Cassation upheld the findings and reasoning of the 3rd Commercial Chamber. As the Government have observed, the judgments given by the domestic courts are relatively lengthy and detailed in their reasoning.

The Court notes in addition that in so far as the applicant’s complaint may be understood to concern the assessment of the evidence and the decision reached by the 3rd Commercial Court of Istanbul on the validity of the release letter, it cannot be said that the domestic court’s conclusion was not supported by the evidence before it or was in any way arbitrary or manifestly unreasonable. It recalls in this connection that the assessment of evidence and the weight to be given to the arguments of the parties are primarily matters for regulation by the national courts (see mutatis mutandis the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). The Court attaches importance in this respect to the fact that the decision of the 3rd Commercial Court of Istanbul was reviewed on appeal by the Court of Cassation and its soundness affirmed by a majority.

As to the applicant’s complaint that the domestic court did not hear the testimony of his key witness, the Court notes that the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases.

Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases as regards litigation involving opposing private interests. As regards litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a “fair hearing” are met (see the Dombo Beheer BV v. the Netherlands judgment of 27 October 1993, Series A no. 274-B, p. 19, §§ 32-33).

In this connection, the Court notes that the applicant was legally represented throughout the domestic proceedings and had ample opportunity to make submissions in furtherance of his complaint against the bank. It would appear to the Court that the 3rd Commercial Court did not permit witnesses to be heard on behalf of the defendant bank and that its consideration of the case was based on the parties own submissions as well as on the findings of court-appointed experts. There is nothing in the case file which would cast doubt on the impartiality of those experts. In the Court’s opinion, the decision of the domestic court to conduct the proceedings in this way cannot be impugned from the standpoint of the principle of equality of arms.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) The applicant further submits that the reason why his defence rights were limited can be explained by the fact that one of the judges on the bench of the 3rd Commercial Chamber of Istanbul favoured the defendant bank. The judge in question resigned six months after the court’s decision and became one of the defendant’s legal advisers. The applicant claims that this was no mere coincidence. According to the applicant the lack of impartiality on the part of the judge manifested itself in the refusal to call his key witness.

The Court considers that the applicant has failed to substantiate that the President of the 3rd Commercial Chamber conducted the proceedings in a manner which disclosed an appearance of bias towards the defendant bank either with respect to her behaviour during the trial or to the content of the judgment. It notes in this connection that it has not been alleged that the judge had any professional connections or sympathies with the bank before the trial began which would serve to call into question the presumption of the judge’ personal impartiality. The fact that after vacating his position on the bench the judge joined a law office which advised the defendant does not in the Court’s opinion amount to an ascertainable fact which may raise a doubt as to his impartiality at the relevant time (see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48). Thus, on either a subjective or objective test of impartiality the applicant’s complaint cannot be sustained.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Michael O’Boyle Wilhelmina Thomassen 
 Registrar President

SÜLEYMAN MERCÜMEK v. TURKEY DECISION


SÜLEYMAN MERCÜMEK v. TURKEY DECISION