GENCER INSAAT TAAHHUT TURIZM TICARET SANAYII LTD. STI. v. TURKEY
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
1. The applicant, Gençer İnşaat Taahhüt Turizm Ticaret Sanayii Ltd. Şti., is a Turkish commercial company based in Ankara. It was represented by Mr M. Bir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 2. On 18 June 1996 the applicant company brought civil proceedings against a private individual (Ö.L.Ö.) before the Kaş Civil Court of First Instance, claiming unjust enrichment. 3. The first hearing scheduled for 24 September 1996 was postponed for administrative reasons. At the next hearing, which was held on 22 October 1996, both parties requested an adjournment to present their evidence. 4. At the following hearing on 20 December 1996 the applicant company explained that it wished to adduce as evidence the entire case-file of a pending claim for reimbursement it had lodged against Ö.L.Ö. The court therefore decided to await the outcome of the proceedings concerning the reimbursement claim and adjourned the case to 2 April 1997. The case-file indicates that the judgment in respect of the applicant company’s reimbursement claim was delivered on 22 October 1996, in accordance with an agreement that had been reached between the applicant company and Ö.L.Ö. This judgment was served on the applicant company on 7 May 1997 and became final in the absence of any appeal. 5. As neither party attended the following two hearings on 2 April 1997 and 28 May 1997 the court decided to discontinue the proceedings unless asked to reinstate them. Following a request to that effect by the applicant company the case was reinstated on 18 August 1997 and a hearing was scheduled for 5 November 1997. 6. Of the fifteen subsequent hearings that were held between 5 November 1997 and 23 February 2000, the applicant company failed to attend eight and requested adjournments in a further two. 7. On 3 June 1998 an expert report was requested by the court. The report was submitted on 3 December 1999. 8. The Kaş Civil Court of First Instance held twenty-three hearings in forty-six months before it delivered its judgment on 14 April 2000. The court awarded the applicant company 8,754,110,491 Turkish liras. Both parties appealed. On 21 March 2001 the Court of Cassation quashed that judgment on the ground, inter alia, that the applicant company had not presented material evidence as proof of its alleged loss. The applicant company’s rectification request was dismissed on 17 September 2001. 9. The case was remitted to the Kaş Civil Court of First Instance, which abided by the decision of the Court of Cassation and dismissed the case on 21 November 2001. The applicant company appealed. On 10 June 2002 the Court of Cassation upheld the judgment. 10. The applicant company then sought rectification. On 26 December 2002 the Court of Cassation refused the applicant company’s request. 11. The decision was lodged with the first-instance court’s registry on 7 January 2003 and served on the applicant company on 4 February 2003.