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TALIPOCLU v. TURKEY - 64236/01 [2007] ECHR 667 (24 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/667.html
Cite as:
[2007] ECHR 667
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FOURTH
SECTION
CASE OF TALİPOĞLU v. TURKEY
(Application
no. 64236/01)
JUDGMENT
STRASBOURG
24 July
2007
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 Talipoğlu v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mrs P. Hirvelä, judges,
and
Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 3 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 64236/01) 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 Mehmed Ali
Talipoğlu (“the applicant”), on 4 August 2000.
The
applicant was represented by Mr A.A. Talipoğlu, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
On
28 October 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Erzurum.
I. First set of proceedings before the Hınıs
Cadastre Court (no.1985/07)
On
an unspecified date, the Land Registry Commission issued a decision
on plots of land in the Taşbulak village in the Hınıs
district in Erzurum registering them as property of the Treasury. The
decision included the applicant’s plot of land.
On
14 January 1985 the mayor of Taşbulak village filed an action
with the Hınıs Cadastre Court and requested the annulment
of the Land Registry Commission’s decision.
On
an unspecified date, the applicant filed a similar action with the
Hınıs Cadastre Court. In his petition he stated that the
plot of land in question had been registered in his father’s
name in 1946.
On
3 October 1986 the Hınıs Cadastre Court decided to join the
cases.
On
21 May 1987 the First Instance Court held its first hearing and heard
the parties.
Between
21 May 1987 and 19 October 1999 the court held fifty three hearings.
During this period, the court examined the documents furnished by the
parties concerning their ownership allegations and ordered on-site
visits to be carried out on the plots of lands. However, the court
postponed carrying out on site visits on the plots of lands due
to bad weather conditions or the absence of experts. Despite the
court’s letters to the Directorate of Agriculture and Land
Registry to secure the presence of the experts, they failed to appear
for the on-site visits.
The
proceedings before the Hınıs Cadastre Court are still
pending. The on-site visits to the plots of land have not yet been
carried out.
2. Second set of proceedings before the Hınıs
Civil Court of First instance (Asliye Hukuk)
On
20 August 1990 the mayor of the Dikili village in Hınıs
district filed an action with the Hınıs Civil Court of
First-instance against the Uyanık village. The action concerned
a dispute over a plot of land.
On
27 June 1991 the applicant intervened in the action and alleged that
his father was the owner of the plot of land in question. The Suvaran
village also intervened in the proceedings.
On
28 May 1992 the First Instance Court sent a letter to the Cadastre
Registration Office and requested the determination of the borders of
the Uyanık and Dikili villages.
On
9 July 1992 the court ordered an on-site visit to be carried out on
the plot of land. In this connection it sent a letter to the
Directorate of Agriculture and Cadastre and requested the latter to
secure the presence of experts for the on-site visit.
Between
9 July 1992 and 18 November 1999 the court held thirty nine
hearings. During this period, the court postponed the conduct of
on-site visits on account of bad weather conditions or the absence of
the experts.
On
18 July 1996 during the hearing before the court the applicant
requested the court to carry out an on-site visit to the plot of land
and to secure the presence of the experts.
On
3 October 1996 the court postponed an on-site visit. It noted that
the District Gendarmerie Command had sent a letter and informed the
court that an on-site visit could not be carried out for security
reasons in the area.
On
28 June 2001 the Hınıs Civil Court of First Instance issued
a decision of non-jurisdiction in respect of the applicant’s
action and decided to relinquish jurisdiction in favour of the Hınıs
Cadastre Court. The court further decided to strike out the case in
respect of the Dikili and Suvaran villages since they had failed to
pursue their claim. The applicant appealed.
On
11 December 2001 the Court of Cassation dismissed the appeal. This
decision became final on 14 February 2002.
3. Third set of proceedings before the Hınıs
Cadastre Court (no.1985/423)
On
19 February 1985 the mayor of Suvaran village filed an action with
the Hınıs Cadastre Court against the Dikili village and
requested the annulment of the decision of the Land Registry
Commission in respect of the plots of land (see paragraph 5 above).
On
an unspecified date, the applicant filed an application to intervene
in the action.
On
25 March 1986 the court accepted the applicant’s request for
intervention and decided to join the cases nos. 1985/423 and 1985/07.
Between
2 September 1986 and 9 November 1999 the court held fifty nine
hearings. During this period it examined the documents submitted by
the parties and requested the State authorities to submit additional
documents concerning the plots of land in question.
On
24 March 1989 the court ordered an on-site visit to the plots of
land. However it postponed the on-site visits due, respectively, to
the absence of the experts or bad weather conditions.
The
proceedings before the Hınıs Cadastre Court are still
pending. The on-site visits to the plots of land have not yet been
carried out.
4. Applicant’s petition to the General
Directorate of Criminal Matters
On
7 February 2000 the applicant filed a petition with the General
Directorate of Criminal Matters attached to the Ministry of Justice.
He complained that the judges at the Hınıs Civil Court of
First Instance and Hınıs Cadastre Court had failed to
display due diligence in handling the proceedings concerning the
lands in question.
In
a letter of 18 May 2000 the General Directorate of Criminal Matters
dismissed the applicant’s request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in 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...”
The
Government contested that allegation.
The
Court notes that in the instant case there are three sets of
proceedings which commenced on different dates. Accordingly, the
period to be taken into consideration for each of the proceedings
must be calculated separately.
As
regards the first set of proceedings, which are still pending, the
Court notes that the period began on 28 January 1987 when the
recognition by Turkey of the right of individual petition took effect
(see Şahiner v. Turkey, no. 29279/95, ECHR 2001 IX,
§ 22). However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time. The proceedings in questions have already
lasted more than twenty years. They had already lasted approximately
two years on the last-mentioned date before one level of
jurisdiction.
The
second set of proceedings began on 27 June 1991, the date on which
the applicant became an intervening party to the proceedings, and
ended on 14 February 2002. They thus lasted approximately ten years
and seven months.
The
third set of proceedings began on 25 March 1986, the date on which
the Hınıs Cadastre Court joined the cases following the
intervention of the applicant, and they are still pending. They have
already lasted more than twenty years. As noted above, the Court’s
jurisdiction ratione temporis only permits it to consider the
period that elapsed after 28 January 1987. It must nevertheless
take account of the state of the proceedings at the time when the
aforementioned declaration was deposited. On that critical date the
proceedings had already lasted nine months.
A. Admissibility
The
Court notes that the application 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
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).
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).
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 in the instant case the length of proceedings before the Hınıs
Cadastre Court and Hınıs Civil Court of First Instance was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 120,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 for non pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Accordingly, the Court awards EUR
20,000 for the length of the proceedings before the Hınıs
Cadastre Court (first and third sets of proceedings which were
examined jointly) and EUR 9,000 in respect of the proceedings before
the Hınıs Civil Court of First Instance.
In
sum, ruling on an equitable basis, the Court awards EUR 29,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 10,500 for the costs and expenses incurred
before the Court.
The
Government submitted that the amount claimed was excessive and
unsubstantiated
According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for costs and
expenses incurred in the course of the proceedings before the Court.
C. Default interest
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
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
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 29,000 (twenty-nine thousand euros) in respect of
non-pecuniary damage and EUR 3,000 (three thousand euros) for costs
and expenses, plus any tax that may be chargeable, to be converted
into new Turkish liras 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
