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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GENCER INSAAT TAAHHUT TURIZM v Turkey - 33026/03 [2008] ECHR 1363 (21 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1363.html Cite as: [2008] ECHR 1363

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THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33026/03
by GENÇER İNŞAAT TAAHHÜT TURİZM
TİCARET SANAYİ LTD ŞTİ
against Turkey

The European Court of Human Rights (Third Section), sitting on 21 October 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Işıl Karakaş, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 21 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Gençer İnşaat Taahhüt Turizm Ticaret Sanayi Ltd Şti, is a Turkish company based in Ankara. It is represented before the Court by Mr M. Bir, a lawyer practising in Ankara.

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

In 1988 the applicant company and a private individual (Ö.L.Ö.) signed a contract concerning the transfer of title to 58% of Ö.L.Ö.'s land to the applicant company in return for which the company would build an accommodation facility for Ö.L.Ö. on the remaining 42%. Ö.L.Ö. further agreed to pay any additional costs that might arise in the course of the construction. The title was transferred and construction of the building commenced in accordance with the contract.

First set of proceedings

When the construction of the facility reached a certain stage the applicant company demanded payment for its additional costs. Ö.L.Ö. refused to pay.

On 9 October 1989 the applicant company brought proceedings against Ö.L.Ö. before the Kaş Civil Court of First Instance, seeking the reimbursement of 198,428,000 Turkish liras (TRL) in respect of all its costs and expenses.

While the proceedings were pending the applicant company proposed, on 1 January 1994, to settle the disagreement and Ö.L.Ö. accepted. Under the settlement, the applicant company was to return title to the land to Ö.L.Ö., who would reimburse the costs and expenses incurred by the applicant company in the construction of the accommodation facility.

On 22 October 1996 the Kaş Civil Court of First Instance delivered its judgment in accordance with the agreement reached by the parties. Title to the land was to be transferred back to Ö.L.Ö., while Ö.L.Ö. was ordered to pay the applicant company TRL 190,762,922 plus the statutory interest due. The court refused the applicant company's request to reserve its rights to claim further compensation. Neither party appealed.

Ö.L.Ö. paid the applicant company TRL 330,000,000 on an unspecified date at the end of 1998.

Second set of proceedings

While the first set of proceedings was pending, the applicant company brought new proceedings against Ö.L.Ö. before the Kaş Civil Court of First Instance on 18 June 1996, claiming TRL 10,000,000,000 for unjust enrichment.

On 14 April 2000 the Kaş Civil Court of First Instance awarded the applicant company TRL 8,754,110,491.

Both parties appealed.

On 21 March 2001 the Court of Cassation quashed the judgment on the ground, inter alia, that the applicant company had not presented material evidence in proof of its alleged loss.

The case was remitted to the Kaş Civil Court of First Instance, which abided by the decision of the Court of Cassation and dismissed the case on 21 November 2001.

The applicant company appealed.

On 10 June 2002 the Court of Cassation upheld the judgment.

The applicant company requested rectification.

On 26 December 2002 the Court of Cassation dismissed the applicant company's request.

The decision was served on the applicant company on 4 February 2003.

COMPLAINTS

The applicant company complained under Article 1 of Protocol No. 1 that at the end of the first set of civil proceedings it had been awarded an insufficient amount of money as the interest rates were low compared with the high inflation rate in the country. It further alleged under the same Article that the domestic courts had misinterpreted the domestic laws in dismissing its claim concerning unjust enrichment.

The applicant company contended under Article 6 § 1 of the Convention that the decisions of the domestic courts had been unfair, the Court of Cassation's decisions had not been sufficiently reasoned and the civil proceedings had been unreasonably lengthy.

THE LAW

It follows that the applicant company's complaints relating to the first set of civil proceedings were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

The applicant company additionally complained under Article 1 of Protocol No. 1 about the courts' misinterpretation of domestic law in dismissing its claims. The Court considers that this part of the applicant company's complaint should be examined under Article 6 § 1 of the Convention

The Court reiterates that while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, §§ 45 46, Series A no. 140). The Court further notes that the extent of the duty of courts to give reasons may vary and must be determined in the light of the circumstances of the case. In dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 I, with further references).

The Court notes that there is no indication in the present case file that the applicant company could not duly present its arguments or state its case fully; nor is there any indication of unfairness or arbitrariness in the assessment of the facts or evidence or the interpretation of domestic law, in possible breach of Article 6 § 1 of the Convention. The judgments delivered by the first-instance court explain the facts, the parties' submissions, the expert reports and the court's interpretation, as well as the legal provisions applied. Therefore, the requirements of Article 6 in these respects have been met.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the length of the second set of civil proceedings;

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President