SECOND SECTION

DECISION

Application no . 50871/06 E.S . against Turkey

The European Court of Human Rights ( Second Section ), sitting on 28 January 2014 as a Committee composed of:

András Sajó , President, Nebojša Vučinić , Egidijus Kūris , judges , and Stanley N aismith , Section Registrar ,

Having regard to the above application lodged on 11 December 2006 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, E.S. , is a construction company based in Istanbul . The President granted the applicant company ’ s request for its identity not to be disclosed to the public (Rule 47 § 3). The applicant company was represented before the Court by Mr A. Kaya , a lawyer practising in Istanbul .

The circumstances of the case

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

On 26 May 1993 the applicant construction company won a tender for the construction of army barracks in Zonguldak and signed an agreement with the Ministry of Public Works and Settlement (“the Ministry”) to that effect. This agreement included in its annex the General Specifications of Public Works prepared by the Ministry, as was the standard procedure in public tenders.

By a report dated 30 December 1999, namely the progress payment report, the Ministry established that certain aspects of the construction failed to comply with the terms of the agreement, and decided to make some deductions from the progress payment ( hakediÅŸ ) owed to the applicant company for that reason. The applicant company objected to this report via a letter submitted to the Ministry.

Subsequently , on 29 May 2000 the applicant company brought a court action against the Ministry to recover the amounts that had been wrongfully deducted from the progress payment. On 21 January 2004 the Karabük Civil Court of First Instance partially accepted the merits of the applicant ’ s claim.

However, on 10 January 2005 the Court of Cassation quashed that judgment on procedural grounds, holding that the applicant company had waived its right to object to the deduction of the progress payment by failing to comply with the objection procedure set out clearly in the General Specifications of Public Works, annexed to the agreement with the Ministry. Following the remittal of the case, on 10 May 2005 the Karabük Civil Court of First Instance complied with the decision of the Court of Cassation and rejected the applicant ’ s request for compensation from the Ministry. On 20 January 2006 the Court of Cassation upheld that judgment and on 26 June 2006 it dismissed the applicant ’ s rectification request.

COMPLAINTS

The applicant company complain ed under Article 6 § 1 of the Convention that by rejecting its compensation request purely on procedural grounds, the domestic courts unfairly upheld the unilateral acts of the administration, including the procedural rules incorporated unilaterally by the administration in the construction agreement. It also complain ed under Article 1 of Protocol No. 1 that the administration ’ s unjustified deductions from the progress payment constituted a violation of its property rights.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention of the unfairness of the domestic proceedings where its claims were dismissed purely on procedural grounds that favoured the administration.

The Court reiterates in this connection that it falls first and foremost on national courts to interpret and apply the facts and evidence before them, the Court ’ s function being limited to detecting any manifest arbitrariness in their conduct ( García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). It is clear that in the instant case, the domestic courts rejected the applicant ’ s compensation claim on procedural grounds for failure to comply with the terms of an agreement that the company had voluntarily entered into with the administration, which obliged it to follow certain specific procedural steps in order to raise any objections to the Ministry ’ s acts. Bearing in mind the domestic courts ’ finding that the applicant company failed to observe the procedural rules in question, which finding the applican t did not contest before the Court, there is no indication that the domestic courts acted arbitrarily or otherwise unfairly in dealing with the applicant ’ s compensation request. Moreover, the applicant was able to bring its objections, as well as all the evidence it wished in order to support its claims , to the attention of the domestic courts during the proceedings, but the courts nevertheless decided that the applicant company had not complied with the procedural rules set out in the agreement.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant company further maintained under Article 1 of Protocol No. 1 that the administration ’ s unjustified unilateral actions had breached its property rights.

In the Court ’ s opinion, it cannot be considered that the applicant company duly exhausted the domestic remedies as required under Article 35 § 1 of the Convention, as by failing to duly follow the procedural rules set out under the impugned construction agreement to challenge the actions of the Ministry, the applicant company effectively barr ed the domestic courts from examining this complaint on the merits through its own fault (see, mutatis mutandis , Agbovi v. Germany ( dec. ), no. 71759/01, 25 September 2006 on the necessity to comply with formal requirements of exhaustion).

Having regard to the foregoing, the Court considers that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith András Sajó Registrar President