FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70829/01 by Yusuf GABAY against Turkey

The European Court of Human Rights ( Fourth Section) , sitting on 3 September 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm ,

Mr R. Maruste , Mr S. Pavlovschi ,

Mr L. Garlicki , judges , and Mr M . O’Boyle , Section Registrar ,

Having regard to the above application introduced on 16 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, M Yusuf Gabay , is a Turkish national, who was born in 1939 and lives in Istanbul. He is represented before the Court by Mrs Ertürk , a lawyer practising in Ankara.

A. The circumstances of the case

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

On an unspecified date, the applicant was involved in a set of enforcement proceedings ( icra takibi ) against his debtors in order to enforce the payment of six bonds issued by his debtors between 1980 and 1981. The enforcement proceedings lasted for almost ten years. In 1993 the applicant obtained a sum of TRL 54,000,000, interest included.

On 25 January 1994 the applicant lodged a complaint with the Istanbul Commercial Court (Istanbul Asliye Ticaret Mahkemesi ) against his debtors and requested additional compensation ( munzam zarar ) under Article 105 of the Code of Obligations, for the damage he sustained as a result of the delay in payment. He alleged that the payment was made with ten years of delay and that his loss resulting from the increase in inflation during this period exceeded the interest awarded to him for late payment.

On 17 April 1995 an expert report was submitted to the court. The expert report stated that the applicant should not be awarded additional compensation on the ground that he was unable to verify the damages he sustained against inflation.

On 5 October 1995 the Istanbul Commercial Court dismissed the applicant’s request for the reasons stated in the expert’s report. The applicant appealed.

On 24 December 1996 the Court of Cassation quashed the first instance court’s decision on the ground that the applicant had sustained damages due to the delay in payment and that he should be awarded compensation. The case was remitted to the first instance court.

On 29 September 1997 the first instance court adhered to its first decision. The applicant appealed.

On 3 September 1999 the General Assembly of the Court of Cassation upheld the first instance court’s decision. The applicant’s request for rectification was dismissed on 24 April 2000. This decision was served on the applicant on 24 May 2000.

B. Relevant domestic law

Article 105 of the Code of Obligations

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

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

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the courts’ refusal to grant him additional compensation for the delay in payment violated his right to property.

2. The applicant complains under Article 6 § 1 of the Convention of the length of the enforcement proceedings before the Şişli Enforcement Office and the Enforcement Court. He alleges that the proceedings lasted for almost ten years and that they were unduly protracted.

3. The applicant further complains under Article 6 § 1 of the Convention that the civil proceedings before the Istanbul Commercial Court lasted for six years and three months and that his right to a fair trial within a reasonable time was violated in this respect.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the courts’ refusal to grant him additional compensation violated his right to property.

The Court points out that the nature of the applicant’s complaint was to be granted additional compensation for the prejudice he suffered, which was refused by the domestic courts. The Court recalls that the establishment of the facts and the assessment of the evidence are primarily matters for the domestic courts, the Court’s supervisory jurisdiction being limited to ensuring the applicant’s Convention rights have not been breached. The Court finds no evidence or basis on which to conclude that the courts, in establishing the facts or interpreting the law, acted in an arbitrary or unreasonable manner. In these circumstances, the Court does not find that any issue arising under Article 1 of Protocol No. 1 to the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3.

2. The applicant complains under Article 6 § 1 of the Convention about the length of the enforcement proceedings instituted before the Şişli Enforcement Office and the Enforcement Court.

The Court observes that the enforcement proceedings were concluded and the applicant was paid the relevant amount in 1993, whereas the application was introduced with the Court on 16 November 2000, more than six months after the payment was made.

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

The applicant further complains under Article 6 § 1 of the Convention that the civil proceedings instituted before the Istanbul Commercial Court lasted for six years and three months and that his right to a fair trial within a reasonable time was violated in this respect.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 of paragraph 2 (b) of the Rules of Procedure, to give notice of them to the respondent government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the civil proceedings before the Istanbul Commercial Court;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President