European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40056/04
by Abdullah YÜCEL and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 16 December 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 10 September 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Abdullah Yücel, Ms Zarife Çahan, Mr Cemil Koşar, Mr Cemal Koşar, Mr Mehmet Koşar, Ms Remziye Yönel, Ms Sakine Bingöl, Mr Namık Kemal Özkan, Ms Macide Cediz, Ms Fatma Müjgan Gündüz, Ms Esra Coşkun, Mr Faruk Ömer Özkan, Ms Fikriye Özkan, Ms Funda Özkan Turanlı, Mr Fatih Özkan, Mr Uğur Özkan, Mr Onur Özkan, Ms Nazmiye Biten, Ms Zehra Özkan, Ms Yasemin Özkan and Mr Mehmet Özkan, are Turkish nationals who were born in 1937, 1939, 1920, 1959, 1952, 1954, 1946, 1958, 1951, 1956, 1967, 1954, 1953, 1978, 1979, 1980, 1983, 1939, 1949, 1973 and 1975 respectively and live in Istanbul. They are represented before the Court by Mr E. Eraslan and Ms G. Gedikoğlu, lawyers practising in Istanbul.

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

The ownership of a plot of land in Istanbul which had been registered under the name of the applicants was the subject matter of a dispute before the Çatalca Land Registry Court (Tapulama Mahkemesi) between the applicants and the State as well as a number of other individuals. The proceedings, which started in 1963, ended on 7 May 1996 by a judgment delivered in favour of the applicants.

At the meanwhile the General Directorate of the State Property (Arsa Ofisi Genel Müdürlüğü) decided on 22 January 1986 to expropriate the disputed land. In compliance with the then existing procedure the expropriation of the land and the payment of 31,606,400 Turkish liras (TRL)¹ in return was ordered by the Çatalca Civil Court on 18 November 1987. The parties did not appeal. The decision became final and the compensation amount was deposited in a bank account pending the proceedings before the Çatalca Land Registry Court.

In 1986 the applicants brought two cases for additional compensation for the expropriated land, which were joined by the Çatalca Civil Court in 1989. Claiming that the additional compensation amount to be awarded by the court would not have met their actual loss, the applicants stopped pursuing their case and on 11 August 1994 the court decided not to continue the proceedings.

On 9 December 1997 the applicants initiated proceedings before the Büyükçekmece Civil Court and requested the value of the property to be determined and a payment of TRL 125,000,000,000² for their damages due to the expropriation of their land. The court issued a decision of non-jurisdiction on the ground that the proceedings should have been instituted before the competent administrative court. The applicants' appeal was further dismissed by the Court of Cassation on 12 April 1999.

Consequently, the applicants instituted damage proceedings on 21 July 1999 before the Istanbul Administrative Court.

On 14 February 2002 the Istanbul Administrative Court dismissed the applicants' claims. Referring to the judgment of the Çatalca Civil Court dated 18 November 1987 which had determined the compensation amount for the expropriated land and which had become final as neither party appealed against it as well as to the additional compensation proceedings before the same court which the applicants had stopped pursuing, the court declared that the State could not be hold liable for the applicants' omission in not following the judicial procedure in due time.

The applicants' appeal and rectification requests were rejected by the Council of State on 17 February 2004 and 28 March 2005 respectively.

COMPLAINTS

The applicants complain about the unreasonable length and unfairness of the domestic proceedings which had breached their right to property. They rely on Article 6 § 1 of the Convention as well as Article 1 of Protocol No. 1.

THE LAW

(a)  Complaints concerning the first two sets of proceedings

The Court observes that there were four separate proceedings, namely concerning the ownership of the property; the applicants' request for additional compensation; the applicants' claim for damages brought before a non-competent court; and the applicants' claim for damages brought before the competent court – which ended on 7 May 1996, 11 August 1994, 12 April 1999 and 28 March 2005 respectively.

The Court points out that under Article 35 § 1 of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law.

The Court notes in this connection that the present application was introduced before the Court on 10 September 2004, therefore complaints concerning the first two set of proceedings have been lodged outside the six-month period.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

(b)  Complaint concerning the proceedings before the Büyükçekmece Civil Court and the Istanbul Administrative Court

The Court observes that the proceedings concerning the applicants' damage claims started on 9 December 1997 before the Büyükçekmece Civil Court and ended on 12 April 1999 by the decision of the Court of Cassation. Subsequently proceedings before the Istanbul Administrative Court started on 21 July 1999 and ended on 28 March 2005. Therefore all together they lasted some seven years and three months before two separate courts, at three levels of jurisdiction, delivering five judgments.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

The Court notes that the applicants have not given any reasons as to why the proceedings before the Istanbul Administrative Court had been unfair other than that they had not been concluded within a reasonable time.

In this connection, the Court reiterates at the outset its “fourth-instance” doctrine (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28 29, ECHR 1999 I). Having regard to the material in the case file, it considers that the applicants have failed to lay the basis of an arguable claim that that any of the procedural guarantees contained in Article 6 of the Convention were breached in the present case.

As for the applicants' complaints under Article 1 of Protocol No. 1 to the Convention, the Court reiterates that the applicants' request was dismissed by the Istanbul Administrative Court for not having pursued their claims before the Çatalca Civil Court. Even assuming that the applicants had “a claim” within the meaning of Article 1 of Protocol No. 1, in the light of its conclusion under Article 6 above, the Court holds that the applicants' complaints under this head are also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants' complaint concerning the length of proceedings before the Büyükçekmece Civil Court and the Istanbul Administrative Court;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President