FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74495/01 
by KAT İNŞAAT TİCARET KOLLEKTİF ŞİRKETİ / İSMET KAMIŞ VE ORTAKLARI 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 31 January 2006 as a Chamber composed of:

Mr J. Casadevall, President
 Mr R. Türmen
 Mr M. Pellonpää
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 17 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Kat İnşaat Ticaret Kollektif Şirketi / İsmet Kamış Ve Ortakları, is a company based in Turkey. It is represented before the Court by Mr T. Elçi, a lawyer practising in Diyarbakır.

A.  The circumstances of the case

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

On 18 August and 16 September 1987 and 16 May 1990 the applicant concluded three contracts with the General Directorate for Water and Infrastructure (İSKİ) (“the General Directorate”) and undertook the construction of parts of the water infrastructure in Istanbul. Subsequent to the failure of the General Directorate to pay the applicant the relevant amounts, the latter filed actions against the administration.

1.  First set of proceedings

On 19 November 1991 the applicant filed an action with the 4th Chamber of the Istanbul Commercial Court and requested this court to order payment of TRL 500,000,000 alleging that the General Directorate had failed to comply with its undertakings arising from the contract of 16 September 1987.

On 22 December 1995 the first-instance court awarded the applicant the claim in part, plus interest at the rediscount rate, running from the date of lodging of the case (decision no. 1995/1599, on file no. 1992/381).

In June 1997 the Court of Cassation upheld the judgment of the first-instance court.

On 23 June 1999 the due amount was paid to the applicant.

2.   Second set of proceedings

On 10 October 1995 the applicant filed an action with the 4th Chamber of the Istanbul Commercial Court and requested this court to order payment of 10,279,231,935 Turkish liras (TRL) alleging that the General Directorate had failed to comply with its undertakings arising from the contract of 16 May 1990.

In 1999 the General Directorate filed a cross-action with the 7th Chamber of Istanbul Commercial Court requesting the sum of TRL 7,650,721,062 claiming that this sum had been overpaid to the applicant.

On an unspecified date, the 7th Chamber of Istanbul Commercial Court decided that the case before it should be joined with the case before the 4th Chamber of the same court.

On 14 July 1999 the 4th Chamber of Istanbul Commercial Court requested the 7th Chamber of the same court to submit the file of a case (file no. 1999/724) which was related to the case before it.

Between 14 July 1999 and 3 November 2000 the 4th Chamber of Istanbul Commercial Court repeatedly requested the 7th Chamber to send the aforementioned file.

On 3 November 2000 a copy of the file no. 1999/724 was submitted to the 4th Chamber of the Istanbul Commercial Court by the applicant.

On the same day the first-instance court awarded the applicant the claim in full, plus interest at the rediscount rate, running from the date of lodging of the case. The court dismissed the General Directorate’s cross-action (decision no. 2000/992, on file no. 1995/1322).

On 14 January 2002 the Court of Cassation upheld the judgment of the first-instance court.

On 23 October 2002 the Court of Cassation dismissed the request for rectification of decision.

3.   Third set of proceedings

On 15 December 1998 the applicant filed an action with the Şişli Civil Court of First Instance and requested this court to order payment of TRL 24,350,317,841 alleging that the General Directorate had failed to comply with its undertakings arising from the contract of 18 August 1987.

On 28 September 1999 the Şişli Civil Court of First Instance awarded the applicant the claim in full, plus interest at the rediscount rate, running from 19 August 1994.

On 6 March 2000 the Court of Cassation quashed the judgment of the first-instance court, holding that the latter had failed to correctly assess the amount awarded.

On 24 January 2002 the Şişli Civil Court of First Instance abided by the decision of the Court of Cassation and awarded the applicant TRL 1,194,597,441. The applicant appealed.

On 30 September 2002 the Court of Cassation upheld the judgment of 24 January 2002.

B.  Relevant domestic law

Article 105 of the Code of Obligations provides:

“Where the loss sustained by the creditor exceeds the interest due for delay and the debtor is unable to show that the creditor has been at fault, it is for the debtor to make good the loss.

If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits.”

In practice, the loss for which compensation may be claimed under this provision is the loss caused by the lapse of time between the date the debt is due and the date it is paid (Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, § 19).

COMPLAINTS

The applicant company complains under Article 6 § 1 of the Convention that the proceedings were not concluded within a “reasonable time” and that due to the length of the proceedings in question it sustained damage because of the administration’s delay in paying its debts. It further complains under the same head that the domestic courts did not render fair judgments in the cases against him as they erred in their assessments of the facts and the evidence.

The applicant contends under Article 9 of the Convention that the General Directorate did not comply with its undertakings arising from the contracts as the representative of the company, İsmet Kamış, belonged to the Alevi sect.

The applicant maintains under Article 17 of the Convention that the General Directorate’s conduct constituted an abuse of the rights set forth in the Convention.

By a letter dated 28 January 2005, the applicant further complained under Article 14 of the Convention that the General Directorate’s conduct was motivated by the religious beliefs of İsmet Kamış. The applicant company also alleged under Article 1 of Protocol No. 1 that it had sustained damage as the proceedings had not been concluded within a reasonable time, which constituted an unjustified interference with its right to peaceful enjoyment of possessions.

THE LAW

1. The applicant company alleged that the General Directorate’s non-compliance with its undertakings arising from the contract of 16 September 1987 and the subsequent proceedings before the 4th Chamber of the Istanbul Commercial Court had violated its rights under Articles 6 § 1, 9, 14 and 17 of the Convention and Article 1 of Protocol No. 1.

The Court observes that the proceedings in question ended in June 1997 and payment was made to the applicant on 23 June 1999, whereas the complaints concerning these proceedings were introduced to the Court on 17 October 2000 and 28 January 2005, i.e. more than six months later.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant contended under Article 6 § 1 of the Convention that the proceedings initiated on 10 October 1995 and 15 December 1998 had not been concluded within a reasonable time and that due to the length of the proceedings in question it had sustained damage since the administration had delayed in paying its debts. By the letter dated 28 January 2005, the applicant reiterated its above-mentioned grievance under Article 1 of Protocol No. 1. The applicant further complained under Article 6 § 1 about the domestic courts’ assessments of the facts and the evidence.

The Court observes that the applicant’s complaint under Article 6 § 1 of the Convention relating to the length of the proceedings and the subsequent damage sustained by the applicant concerned its right to peaceful enjoyment of possessions in substance. It therefore considers that this part of the application should be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

a) As to the complaint under Article 6 § 1 of the Convention, concerning the length of the proceedings initiated on 10 October 1995, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application 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.

b) As to the complaint under Article 6 § 1 of the Convention, concerning the length of the proceedings initiated on 15 December 1998, the Court observes that the period complained of began on 15 December 1998 and ended on 30 September 2002. The proceedings thus lasted three years and nine months for two levels of jurisdiction, each of which examined the case twice.

After examining the overall duration of the proceedings, taking into account that the case was of some complexity and the fact that the case was dealt with twice at two levels of jurisdiction, the Court does not consider that the length of the proceedings in the present case was excessive. Moreover, the applicant did not point out any specific periods of inactivity attributable to the authorities. The Court therefore finds that there has been compliance with the “reasonable time” requirement of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

c) As to the complaint under Article 6 § 1 of the Convention concerning the domestic courts’ assessment of the facts and the evidence before them, the Court recalls at the outset its “fourth instance” doctrine (for which, see García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). Having regard to the materials submitted by the applicant, it notes that the applicant has failed to lay the basis of an arguable claim that any of the procedural guarantees contained in Article 6 were breached in the cases.

This part of the application is therefore manifestly ill-founded and must be rejected in application of Article 35 §§ 3 and 4 of the Convention.

d) As to the complaint under Article 1 of Protocol No. 1, the Court observes that the domestic courts awarded the applicant its claims in full or in part, plus interest at the rediscount rate. The Court considers that, in principle, any alleged damage arising from the late payment of the debt would be redressed through the payment of the interest at the rediscount rate, which is set in line with the inflation rate. Furthermore, the applicant could and should have made use of the remedy available under Article 105 of the Code of Obligations if it sustained loss exceeding the interest due for delay.

In the circumstances of the case, the Court finds that the applicant failed to comply with the exhaustion requirement.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant maintained under Article 9 of the Convention that the General Directorate did not comply with its undertakings arising from the contracts of 16 May 1990 and 18 August 1987 as İsmet Kamış belonged to the Alevi sect. By the letter of 28 January 2005, the applicant further complained under Article 14 of the Convention that the General Directorate’s conduct was motivated by the religious beliefs of İsmet Kamış.

The Court considers that the essence of the complaints under Articles 9 and 14 of the Convention are the same and that therefore the applicant’s submissions under these heads should be examined from the standpoint of Article 14 of the Convention, in conjunction with Article 9 of the Convention.

The Court observes that the applicant company did not submit any evidence in support of its allegation, apart from a document according to which İsmet Kamış belongs to the Alevi sect and is one of the founding members of the Cem Foundation. Furthermore, it did not submit any document to the Court indicating that it had brought this Convention grievance to the attention of the judicial authorities. The Court is therefore of the opinion that the applicant has failed to substantiate its allegation and to lay the basis of an arguable claim of a breach of Article 14.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicant maintained under Article 17 of the Convention that the General Directorate’s conduct had been an abuse of the rights set forth in the Convention.

The Court notes that the applicant has not substantiated the complaint under this provision. It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the proceedings insofar as they relate to the proceedings initiated on 10 October 1995;

Declares the remainder of the application inadmissible.

Michael O’Boyle Josep Casadevall 
 Registrar President

KAT İNŞAAT TİCARET KOLLEKTİF ŞİRKETİ / İSMET KAMIŞ VE ORTAKLARI v. TURKEY DECISION


KAT İNŞAAT TİCARET KOLLEKTİF ŞİRKETİ / İSMET KAMIŞ VE ORTAKLARI v. TURKEY DECISION