European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2360/03
by Mehmet Fikret ÇİÇEK and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 December 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 2 December 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Mehmet Fikret Çiçek, Mrs Ayşe Yasemin Üstünel, Mr Tevfik Tanyolaç, Mr Alaattin Zenginer, Mr İrfan Sökmen, Mr Seyit Akyurt, Mr Emin Hasçalık and Mr Tuncer Hasçalık, are Turkish nationals and live in Istanbul. They are represented before the Court by Mr H. İ. Er, a lawyer practising in Istanbul.

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

The applicants are the owners of a plot of land located in Kurna village, Pendik district in Istanbul, registered as plot no. 601, with a surface area of 310,500 square metres.

In 1954 the authorities conducted a land registry revision in the area where plot no. 601 is situated. The revision resulted in the classification of plot no. 601 as scrubland and field. In 1956 parcel no. 601 was registered in the name of certain individuals.

On 27 May 1993 the applicants bought plot no. 601.

On an unspecified date an annotation (şerh) was made in the land register by the land registry office, indicating that 245,500 square metres of plot no. 601 had been reclassified from forest to Treasury property under Section 2(B) of Law no. 6831.

On 9 July 1999 Mehmet Fikret Çiçek, Ayşe Yasemin Üstünel, Tevfik Tanyolaç, Alaattin Zenginer, İrfan Sökmen, Seyit Akyurt and Tuncer Hasçalık brought a case against the Treasury before the Pendik Civil Court and requested that the annotation be removed.

On 21 December 1999 the Pendik Civil Court granted the applicants' request and ordered that the annotation be removed from the land register.

The Treasury appealed.

On 20 April 2000 the Court of Cassation quashed the judgment of the Pendik Civil Court, holding that the latter should conduct an on-site inspection in order to determine the borders of plot no. 601. The Court of Cassation considered that the annotation would have a legal basis if the land in question had been reclassified from State forest to Treasury property under Section 2(B) of Law no. 6831.

On 1 November 2000, after conducting an on-site inspection, the Pendik Civil Court dismissed the applicants' case.

The applicants appealed.

On 10 April 2001 the Court of Cassation remitted the case file to the first-instance court, requesting the latter to include certain documents in the file.

On 22 January 2002, on receipt of the requested documents, the Court of Cassation upheld the judgment of 1 November 2000.

On 29 April 2002 the Court of Cassation dismissed the applicants' request for rectification of the decision of 22 January 2002.

On 6 June 2002 the decision of 29 April 2002 was deposited with the registry of the first-instance court. However, it was not served on the applicants or their lawyer. The applicants' representative found out about this decision on 26 August 2002.

COMPLAINTS

The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the annotation made in the land register they had not been able to make use of their property, which constituted an unjustified interference with their right to the peaceful enjoyment of their possessions.

The applicants further complained, under Article 6 of the Convention, that the decision of the land registry office to put an annotation in the land register had not been based on a judicial decision.

THE LAW

The applicants submitted that the annotation made in the land register concerning their plot of land constituted a violation of Article 1 of Protocol No. 1. They further complained that the decision to make the annotation in question had been an administrative decision, and had thus constituted a violation of Article 6.

The Court considers that the applicants' complaints essentially concern the alleged interference with their right to the peaceful enjoyment of their possessions and that therefore they should be examined from the standpoint of Article 1 of Protocol No. 1 alone.

a)  As regards the applicants Mehmet Fikret Çiçek, Ayşe Yasemin Üstünel, Tevfik Tanyolaç, Alaattin Zenginer, İrfan Sökmen, Seyit Akyurt and Tuncer Hasçalık, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b)  As regards the applicant Emin Hasçalık, the Court reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts (see Güngör v. Turkey (dec.), no. 46745/99, 6 March 2007).

The Court observes in this connection that all the other applicants brought an action with the Pendik Civil Court and requested the removal of the annotation from the land register and that Emin Hasçalık failed to do so. The Court considers therefore that this applicant did not exhaust the domestic remedies as required by Article 35 § 1 of the Convention.

It follows that the application brought by Emin Hasçalık must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the application in so far as it was brought by Mehmet Fikret Çiçek, Ayşe Yasemin Üstünel, Tevfik Tanyolaç, Alaattin Zenginer, İrfan Sökmen, Seyit Akyurt, and Tuncer Hasçalık;

Declares the application brought by Emin Hasçalık inadmissible.

S. Dollé F. Tulkens
Registrar President