SECOND SECTION

CASE OF CELAL ÇAĞLAR v. TURKEY

( Application no. 11181/04 )

JUDGMENT

STRASBOURG

20 October 2009

DÉFINITIF

20 /01/2010

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Celal Çağlar v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , András Sajó , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and Sally Dollé , Section Registrar ,

Having deliberated in private on 29 September 2009 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 11181/04) 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 Celal Çağlar (“the applicant”), on 2 February 2004 .

2 . The applicant was represented by Ms Tuğba Çağlar, a lawyer practising in Trabzon . The Turkish Government (“the Government”) were represented by their Agent.

3 . On 23 October 2008 the President of the Second Section decided to give notice of the application to the Government . I t was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3) .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1953 and lives in Trabzon .

5 . On 6 October 1995 the applicant signed a contract with POAÅž ( Petrol Ofisi A.Åž. ), former ly a State-owned enterprise, for the operation of a petrol station. Having obtained a construction permit and carried out certain building work at the site, the applicant applied for an operations licence but was refused on grounds of safety, due to the proximity of the petrol station to a rail way .

6 . On 20 June 1997 the applicant lodged an action with the Ankara Commercial Court for the termination of the contract, which he claimed was null and void due to the impossibility of obtaining the operations licence. The applicant also requested the reimbursement of his expenditure , together with interest (case no. 1997/305).

7 . On 25 April 2001 the Ankara Commercial Court partially granted the applicant ' s request by declaring the contract null and void and by ordering the return of the guarantee previously paid by the applicant to the POAÅž, namely 6,290,000,000 Turkish liras (TR L ), plus interest. The Court re jected the request for the reimbursement of the applicant ' s remaining expenditure.

8 . On 26 October 2001 the Court of Cassation upheld the judgment of the first-instance court. The parties requested rectification of this decision.

9 . On 3 June 2002 the Court of Cassation quashed the judgment of the first-instance court. It indicated in particular that the first-instance court had not sufficiently examined whether the POAÅž could be ordered to reimburse the applicant for the expenses incurred in the construction work carried out on the petrol station.

10 . On 21 August 2002 the applicant lodged a further complaint with the Ankara Commercial Court under Article 105 of the Code of Obligations alleging that he had sustained additional loss exceeding the late-payment interest payable as a result of the delay in reimbursing the guarantee (case no. 2002/567). This case was joined to the initial case (no. 1997/305).

11 . On 30 December 2003 the Ankara Commercial Court partially granted the applicant ' s requests and awarded him TRL 5,138,188,500 for the expenses incurred in relation t o the construction work and TRL 2,000,000,000 for his additional financial loss claimed in case no. 2002/567, plus interest.

12 . On 8 February 2005 the Court of Cassation partially quashed the judgment of the first-instance court on account of the insufficient factual examination of the alleged additional financial loss.

13 . On 25 April 2007 the Ankara Commercial Court awarded the applicant TR L 199,413,000,000 for his additional financial loss, plus interest.

14 . On 22 October 2007 the Court of Cassation quashed the judgment of the Ankara Commercial Court on procedural grounds.

15 . The Ankara Commercial Court decided in favour of the applicant on 5 November 2008 and this decision was upheld by the Court of Cassation on 23 March 2009. The applicant subsequently recovered from the POAÅž the total amount of 222,910 new Turkish liras TRY; ( approximately 100,000 euros ; E UR) , which included approximately EUR 95,000 for the late return of the guarantee paid by the applicant in 1995.

16 . In April 2009 the applicant lodged a further complaint with the Ankara Commercial Court under Article 105 of the Code of Obligations, alleging that he had sustained additional losses exceeding the late-payment interest payable as a result of the delay in reimbursing the expenditure incurred by h im . According to the information in the case file, the se proceedings are still pending before the Ankara Commercial Court .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement of 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... ”

18 . The Government contested that argument.

19 . The Court considers that the case brought by the applicant in April 2009 (see paragraph 16 above) , although connected to the subject matter of the earlier litigation , is new and separate. I t cannot, therefore, be taken into account when examining the reasonableness of the length of the earlier proceedings during which the domestic courts had examined the issue of the applicant ' s entitlement to recover his monies . Thus, the Court considers that t he period to be taken into consideration began on 20 June 1997 and ended on 23 March 2009 when the Court of Cassation rendered its final decision (see paragraph 15 above) . It thus lasted eleven years and nine months for two level s of jurisdiction .

A. Admissibility

20 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

21 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

22 . 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 , cited above).

23 . 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 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.

I I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

24 . The applicant further alleged under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that he had sustained financial loss as a result of the undue delay in the proceedings.

25 . The Court observes that t he se complaints relate to the negative consequences of the length of the proceedings which have already led the Court to conclude that they had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention (see paragraph 23 above) . Accordingly, the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 8 of the Convention or of Article 1 of Protocol No. 1 (see, among other authorities, Tamási and Others v. Hungary , no. 25848/06, § 20 , 21 April 2009 ; Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, § 23).

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

26 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

27 . The applicant claimed 6,598,000 US dollars (USD ; approximately EUR 4,600,000) in respect of pecuniary and USD 500,000 (approximately EUR 350,000) in respect of non-pecuniary damage.

28 . The Government co ntested these claims.

29 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However , it awards the applicant EUR 8 , 000 in respect of non-pecuniary damage.

B. Costs and expenses

30 . The applicant also claimed USD 46,000 (approximately EUR 32,000) for the costs and expenses incurred before the domestic courts and the Court.

31 . The Government co ntested the claim.

32 . According to the Court ' s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicant has not submitted to the Court any documents in support of his claim and has thus failed to substantiate i t. Accordingly, the Court makes no award in respect of costs and expenses.

C. Default interest

33 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the excessive length of the proceedings admissible;

2. Holds that it is not necessary to examine separately the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8 , 000 ( eight thousand euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into the national currency of the respondent State at the rate applicable at the date of settlement ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 20 October , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Sally Dollé Françoise Tulkens Registrar President