FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30013/96 by Türkiye İş Bankası against Finland

The European Court of Human Rights (Fourth Section) , sitting on 16 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 November 1995 and registered on 31 January 1996,

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 bank, based in Istanbul (Turkey). It is represented before the Court by Mr Seza ReisoÄŸlu and Mine H. Taygun , both lawyers practising in Ankara (Turkey).

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

On 17 August 1977 the applicant issued a letter of guarantee of USD 5,017,000, addressed to a Turkish company called TEK on behalf of a Finnish co-operative society called Metex . A Finnish bank, Kansallis-Osake-Pankki (KOP), issued a counter-guarantee in favour of the applicant.

On 28 April 1988, the City Court ( raastuvanoikeus , rådstuvurätt ) of Helsinki ordered KOP to abstain from any payments on the basis of a counter-guarantee for the bank guarantee in question.

On 29 September 1988, arbitration proceedings between Metex and TEK were initiated in Zurich (Switzerland), concerning the breach of the original delivery contract. The arbitration award was given on 7 March 1992.

On 15 November 1988, TEK demanded the applicant pay an indemnity on the basis of the guarantee, as Metex had not duly fulfilled its obligations. The same day the applicant transferred to TEK the sum of USD 1,661,164 as indemnity on behalf of Metex on the basis of the guarantee, and informed its corresponding bank in Finland about the operation.

On 18 November 1988, the Finnish bank answered the applicant that the counter-guarantee had expired on 18 August 1987 and that there was an injunction preventing the payment.

On 1 December 1989 the applicant instituted proceedings before the City Court of Helsinki against KOP, claiming a payment on the basis of the counter-guarantee. The case became pending on 4 December 1989 when the writ of summons was served upon the respondent. Metex intervened in the proceedings as a third party. Later the applicant brought a further action which was served upon the respondent on 18 May 1990.

The City Court of Helsinki decided to apply Turkish law and appointed an expert. There were four oral hearings held before the City Court.

The City Court of Helsinki found, on 22 November 1990, in favour of the applicant, basing its judgment on the expert opinion. The court held it established that the applicant had made the payment specified in the action and shown that it was entitled to the amounts claimed. As the agreement had not been shown to be unreasonable, the City Court ordered KOP to pay the applicant the required amount of USD 1,661,164.

On 27 December 1990, KOP and Metex appealed against the decision to the Court of Appeal ( hovioikeus , hovrätt ) of Helsinki.

The reporting member of the Court of Appeal was assigned to the case on 20 February 1992.

The case was examined by the Court of Appeal, without an oral hearing, on the basis of written observations presented by the parties. In the proceedings before the Court of Appeal, the applicant submitted its observations on 10 January 1991, further observations on 19 February 1991, a rejoinder on account of further observations on 15 October 1992, further rejoinder on account of the further observations of Metex on 16 March 1994, and a request for speeding up the proceedings on 16 December 1994. Metex submitted a request for speedy proceedings on 9 January 1991, its announcement of further observations on 30 May and 2 October 1991, further observations and evidence on 29 November 1991, 21 January 1992, 23 April 1992, 18 June 1992 and 5 November 1992. Metex also submitted a rejoinder on account of the rejoinder of the applicant on 16 March 1994, further observations on 15 and 18 April 1994 as well a translation of its observations on 18 May 1994. KOP submitted its further observations on 26 June 1992 and a rejoinder on account of the said rejoinder of the applicant on 16 March 1994.

The final presentation of the case took place on 16 December 1993.

In its judgment of 30 November 1994 the Court of Appeal revoked the City Court judgment, finding that the applicant should have, prior to making the payment, made sure that it had a payment obligation based on the guarantee and that the claim made by TEK was not to be considered fraudulent nor an abuse of rights. The court found it established that the applicant had not shown that it fulfilled its obligations in that respect.

The applicant sought leave to appeal from the Supreme Court ( korkein oikeus , högsta domstolen ) which, on 17 May 1995, refused the applicant leave to appeal.

COMPLAINT

The applicant complains, under Article 6 § 1 of the Convention, that it was denied a fair trial within a reasonable time as the civil proceedings lasted five and a half years and, in particular, as the Court of Appeal of Helsinki needed four years to render its decision.

THE LAW

The applicant ’s complaint relates to the length of the proceedings, which began on 4 December 1989 and ended on 17 May 1995 with the Supreme Court’s decision to refuse the applicant leave to appeal, lasting therefore five and a half years.

According to the applicant, the length of the proceedings, in particular the length of the proceedings before the Court of Appeal, is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which, in so far as relevant, 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...”

1. Period to be taken into account

The Government reject the allegation, and consider that the complaint is in any case incompatible ratione temporis with the provisions of the Convention insofar as it relates to events prior to 10 May 1990, i.e. the date of the ratification of the Convention by Finland. The Government recall that the first part of the case became pending before the City Court on 4 December 1989 and the second part on 18 May 1990. According to the Government, this last-mentioned date is the beginning of the period to be taken into consideration under Article 6 § 1. That period ended on 17 May 1995. The proceedings to be taken into consideration thus lasted almost five years.

In case the Court considers that the proceedings started before the ratification of the Convention by Finland, the Government admit that, in order to determine the reasonableness of the period which elapsed after that date, regard must be had to the stage which the proceedings had reached at that juncture.

The Court considers that the proceedings at issue started on 4 December 1989. The period to be taken into consideration, however, began on 10 May 1990, when the Convention entered into force with respect to Finland, and ended on 17 May 1995, when the Supreme Court refused the applicant leave to appeal. Accordingly, the proceedings to be taken into consideration lasted five years and seven days. However, in order to assess the reasonableness of the length of the time in question, the Court will have regard to the stage reached in the proceedings on 10 May 1990 (see, among other authorities, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299, § 53, and the Humen v. Poland judgment of 15 October 1999, to be published in the official reports of the Court, § 59).

2. Reasonableness of the length of proceedings

The Government submit that the case was very complex as the City Court received evidence written in a foreign language and as Turkish law was applied to the case. The court also heard an expert on the contents of Turkish legal provisions. The parties’ observations were translated during the proceedings before both the City Court and the Court of Appeal. All this complicated the examination of the case, which also otherwise can be considered somewhat complex.

The Government further note that the appeals of KOP and Metex were received by the Court of Appeal on 27 December 1990. After the initial observations numerous documents by the different parties were submitted to the Court of Appeal which pronounced its judgment on 30 December 1994. The Government stress that for each further observations the case-file had to be returned to the reporting member of the court as the study of the case could proceed only after the reporting member had assessed whether the observations involved any relevant information that would affect the decision. According to the Government, the length of the proceedings was thus also due - if only in part - to the conduct of the parties, including the applicant.

The Government further submit that the period the case was pending before the City Court (about eleven months) can be considered very reasonable under the circumstances.

Insofar as the proceedings before the Court of Appeal are considered, the Government note that the arbitration proceedings between Metex and TEK lasted for three and a half years, ending on 7 March 1992. It was necessary to evaluate the outcome of the arbitration proceedings in the judgment of the Court of Appeal. The Court of Appeal also had to interpret and apply Turkish law. Moreover, it was necessary to translate numerous documents during the Court of Appeal proceedings. The Government also emphasise that the number of cases pending before the Court of Appeal of Helsinki was very high at the time. The Government recall that, according to the Court’s case-law, such a temporary backlog does not involve liability on the part of the Contracting State provided that the State takes efficient remedial action with the requisite promptness. Even if the period of four years during which the proceedings were pending before the Court of Appeal cannot be regarded as a short one, the Government consider that the proceedings were not unreasonably long.

The Government further note that the proceedings before the Supreme Court took less than three months.

Finally, the Government submit that there were no exceptional grounds for an urgent consideration of the case, since the parties were two financially sound banks and no special grounds for urgency had been shown.

The applicant maintains that no acceptable justification has been put forward to explain the conduct of the Court of Appeal. It emphasises that the proceedings took a very long time, considering that the case was not complicated. According to the applicant, the fact that Turkish law had to be applied did not affect the complexity of the case as there was a legal opinion of a Turkish expert appointed by the City Court. Even though several observations were submitted to the Court of Appeal, the period of four years before that instance cannot be regarded as reasonable. The applicant points out that the reporting member of the court was assigned only on 20 February 1992, i.e. fourteen months after the appeals had been received. It is further noted by the applicant that the final presentation of the case took place on 16 December 1993 and the decision was rendered on 30 December 1994, i.e. over one year later, after a request for speeding up the proceedings. Finally, the applicant stresses that the increasing number of cases pending before the Court of Appeal cannot be regarded as a valid excuse. Accordingly, there has been a violation of Article 6.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President