PARTLY DISSENTING OPINION OF JUDGE S POPOVIĆ, KARAKA Ş AND PINTO DE ALBUQUERQUE

1. We dissent on the finding of a violation of Article 6 of the European C on v ention on account of the alleged denial of access to court. In our view, this claim is manifestly ill-founded and should therefore have been found inadmissible. Consequently, we would not have awarded any damages or costs and expenses to the applicant. Finally, we do not think that the Court should have ordered the reopening of the proceedings before the domestic courts.

2. The first reason for our disagreement lies in the letter of the agreement concluded between the applicant and the Federal Republic of Germany on 10 October 1983, according to which the ultimate monetary claims of the applicant would be determined after the transmission of a final statement of costs ( Die Schlusszahlung wird fällig wenn die f ür die Berechnung der V ergütung massgebenden anrechenbaren Kosten feststehen, der Auftragnehmer sämtliche Leistungen aus di e sem Vertrag erfüllt und eine pr ü ffähige Rechnung eingereicht hat ) and any disputes arising out the agreement should be dealt with by the Berlin court ( Der Gericht s stand is t Berlin ).

3. In the light of the clear letter of the agreement, which was neither revoked nor altered by the parties, the competent courts to decide upon the applicant ’ s final claim regarding payment of the unpaid work fee were the German courts. The judgment of the Berlin Court of Appeal of 20 November 1990 confirms this assertion. In fact, the German court clearly stated that, in accordance with the “tacit legal choice of the parties” ( stillschweigende Rechtswahl der Parteien ), German substantive law was subsidiary to the contract, regard being had, among others factors, to the choice of the German courts as the courts with jurisdiction to rule on any disputes arising out of the contract and the choice of the German Federal Travel Expenses Act ( Bundesreisekostengesetz ) as the law regulating the payment of travel costs. In accordance with German substantive law, the Berlin Court of Appeal rejected the claim for payment of DM 197,196 in respect of construction plans, travel expenses and tender documents ( Bauaufnahmen , Reisekosten and Ausschreibungsunterlagen ) as unfounded ( nicht begründet ) and provisionally rejected two interim claims for payment ( Zwischenrechnungen ) in the amount of DM 638,803 on the grounds that the sums were not yet due ( mangels Fälligkeit jedenfalls zur Zeit nicht begründet ). The court concluded that the applicant had not submitted a final claim for payment ( Schlussrechnung ) and that the interim claims submitted could not be recognised as a final claim ( Ihre Zwischenrechnung en sind nicht als Schlussrechnung anzuerkennen ). This judgment became res judicat a .

4. Since the parties did not agree on the final amount of the fee owed to the applicant by the German State after the German authorities had drawn up the final statement of costs in the reconstruction project, it was up to the applicant to submit this new dispute to the competent court, that is to say, the Berlin court. Thus, the Turkish courts had no competence to rule on this new dispute, which concerned the applicant ’ s final claim for payment. Nor could they even enforce the previous judgment of the Berlin court of 20 November 1990, since it was obviously not a final and enforceable judgment. Still less could they consider that judgment as “conclusive evidence” of the existence of a final fee owed to the applicant by the German authorities. In other words, section 42 of the Turkish Private International Law and Procedures Act was not applicable. The unavoidable conclusion to be drawn from the above is that there were no legal grounds for the Turkish courts to assess the applicant ’ s new claim under the Turkish Code of Obligations and find it time-barred.

5. In any case, the applicant was not denied access to the Turkish courts and , what is more, even obtained a judgment in its favour ( see paragraph 20). The case was examined and judgment was given on the merits. The applicant is not entitled to complain of the outcome of the proceedings, nor is the Court entitled to lay down guideline s concerning the reasoning of the Turkish Court of Cassation , which ruled differently from the first - instance court.

6. The majority found that the conclusion of the Turkish courts as to when the time - limit for bring ing proceedings started running had denied the applicant the opportunity to have the merits of its claim examined ( see paragraph 4 8 ). However, according to the established case - law of the Court, it is in the first place for the national authorities, and notably the courts, to interpret domestic law and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This applies in particular to the interpretation by the courts of rules of a procedural nature such as time-limits ( see Rodoplu v. Turkey , no. 41665/02, § 23, 23 January 2007).

7. Finally, we agree with the finding of a violation of Article 6 on account of the excessive length of time it took the Turkish courts to reach a final decision on the applicant ’ s claim. Nevertheless, no damages or costs and expenses should be awarded to the applicant, in view of the fact that he wrongfully initiated proceedings before the Turkish courts.

[1] Approximately 2,400 Euro