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 Naismith, 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...
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 Naismith, 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
2 E.S. v. TURKEY DECISION to comply with the terms of the agreement, and decided to make some deductions from the progress payment (hakediş) 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 complained 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 complaine...