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SECOND
SECTION
CASE OF KULMAÇ v. TURKEY
(Application
no. 43874/06)
JUDGMENT
STRASBOURG
4
October 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kulmaç v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43874/06) 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, Mr Halis Kulmaç (“the applicant”),
on 28 September 2006.
- The
applicant was represented by Mr N. N. Tarakçı, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
2 November 2010 the
President of the Second Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Istanbul.
- On
19 July 1992 as a result of a car accident, the applicant’s car
got severely damaged. However, the insurance company failed to pay
the damages and the applicant brought proceedings before the Istanbul
Commercial Court, claiming compensation.
- Following
two judgments which were quashed by the Court of Cassation, on 29
December 1998 the Istanbul Commercial Court partially accepted the
case and held that the defendant company was to pay compensation to
the applicant.
- The
applicant did not appeal against the judgment of the Commercial Court
and was paid the total sum on 22 October 1999.
- Subsequently,
on 22 November 1999 the applicant initiated proceedings requesting
reparation (munzam zarar) for his loss resulting from the
delay in the payment of the compensation.
- On
12 February 2002 the Istanbul Commercial Court dismissed the case.
That judgment was quashed by the Court of Cassation on 13 January
2003.
- Having
examined the case again, on 14 September 2004 the Commercial Court
partially accepted the case and awarded the applicant a certain sum
of reparation.
- On
30 January 2006 the Court of Cassation upheld the judgment of the
first-instance court. The applicant was notified of this final
decision on 28 March 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of two sets of proceedings he
had brought before the Istanbul Commercial Court 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. They maintained that the impugned
proceedings could not be considered to have been excessively long in
view of the complexity of the case, the difficulties in collecting
evidence and the notification process. They concluded therefore that
there had been no delay in the proceedings that could be attributable
to the State.
- The
Court observes that the first set of proceedings concerning the
applicant’s claim for compensation became final on 22 October
1999, when the applicant received the total amount awarded by the
Istanbul Commercial Court. The Court therefore declares this part of
the complaint inadmissible for non-compliance with the six-month
time-limit within the meaning of Article 35 § 1 of the
Convention.
- As
regards the second set of proceedings, the period to be taken into
consideration began on 22 November 1999 and ended on 30 January 2006.
It thus lasted six years and two months for two levels of
jurisdiction.
- The
Court notes that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
- 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 v. France [GC], no. 30979/96, §§
42-46, ECHR 2000 VII, and Daneshpayeh v. Turkey, no.
21086/04, §§ 26-29, 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that the appeal proceedings before Court of
Cassation had not provided an effective remedy whereby his arguments
were evaluated as required by Article 13 of the Convention, which
reads as follows:
“Everyone whose rights and freedoms as set forth
in this Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
- The
Court reiterates that Article 13 does not guarantee a right of appeal
(see, mutatis mutandis, Delcourt v. Belgium, 17 January
1970, §§ 25 26, Series A no. 11, and De Ponte
Nascimento v. the United Kingdom (dec.), no. 55331/00, 31 January
2002). However, where appeal courts do exist, the guarantees of
Article 6 must be complied with, for instance in that they guarantee
to litigants an effective right of access to the courts for the
determination of their “civil rights and obligations”. In
so far as the complaint may be examined under Article 6 of the
Convention, the Court notes that there is no appearance of a
violation in the instant case. The applicant was able to appeal
against the judgment of the first-instance court and his submissions
were evaluated by the Court of Cassation in the light of the domestic
law (see among others, Brualla Gómez de la Torre v. Spain,
19 December 1997, §§ 35-39, Reports of Judgments
and Decisions 1997 VIII, and Dobrić v.
Serbia, nos. 2611/07 and 15276/07, §§ 50 55,
21 June 2011).
- It
follows that the complaint should be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings, in so far as it concerns the reparation
proceedings, admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub Popović
Deputy
Registrar President
