European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4897/05
by İsmail AKBULUT
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 August 2008 as a Chamber composed of:

Françoise Tulkens, President,
Antonella Mularoni,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 27 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr İsmail Akbulut, is a Turkish national who was born in 1934 and lives in Muş. He is represented before the Court by Mr S. Kaya, a lawyer practising in Ankara.

A.  The circumstances of the case

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

A plot of land in the Çayçatı village of Muş has been used by the applicant’s parents without a title deed since the 1930s.

The land in question was registered in the name of the Treasury on 30 March 1960 pursuant to Law no. 4753.

On 8 March 1977 the land was re-registered in the name of the Treasury pursuant to the Land Registry Act (Law no. 766).

On 25 September 1989 the applicant instituted civil proceedings before the Varto Civil Court of First Instance pursuant to Law no. 3402. He requested the annulment of the title to the land. Claiming that the land in question had been in his family’s possession for a long time, the applicant further requested that the land be registered in his name. During the proceedings the court joined the applicant’s case to another brought by two individuals, who filed similar claims in respect of an adjacent plot.

On 20 December 1990 the Varto Civil Court of First Instance dismissed the applicant’s claim. Referring to Law no. 3402, the court noted that it had already granted the registration of 100 hectares of land in the name of the applicant in the same area. However, the court partly accepted the other individuals’ claims.

The judgment was notified to the applicant on 3 August 1992, and to the other two individuals and the Treasury on 4 May and 6 May 2002 respectively.

On 5 June 2002 the Treasury appealed.

On 23 January 2004 the Court of Cassation upheld the judgment.

On 8 July 2004 the decision was served on the applicant.

B.  Relevant domestic law

The Rehabilitation of Farmers Act (Law no. 4753), which entered into force on 11 June 1945, provided that the land specified as such or expropriated for that purpose was to be distributed among farmers who owned no land or whose land was insufficient to support their family.

The Land Registry Act (Law no. 766), which entered into force in 1966, had the aim of extending cadastral surveys over the rural areas. It was eventually superseded by the Land Registry Act (Law no. 3402), which entered into force on 21 June 1987.

Section 14 of Law no. 3402 provides that land with a surface area of up to 100 hectares in a given district can be registered in the name of a possessor who can prove undisputed and continuous use of the land for a period of twenty years. This provision does not prevent the person from also owning land in other districts.

Section 46 of the above-mentioned Law provides that the registration of land is to be carried out in accordance with the provisions therein in the names of those individuals who apply within two years of its entry into force.

COMPLAINTS

The applicant complained that the length of proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

Relying on Article 1 of Protocol No. 1, the applicant firstly asserted that the registration of the land in the name of the Treasury had violated his right to property. In conjunction with this complaint he added, under Article 14 of the Convention, that many people in other regions had acquired title to their land pursuant to Law no. 4753, whereas the Law had not been applied in his region, thus depriving him of this right.

The applicant secondly complained that he had been deprived of his land in circumstances which were incompatible with the requirements of Article 1 of Protocol No. 1.

The applicant lastly maintained, under Article 13 in conjunction with Article 6 of the Convention, that there had been no effective remedy against the interference with his property by the authorities pursuant to Law no. 4753 and Law no. 766.

THE LAW

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 reiterates that it can only consider the period which elapsed after 28 January 1987, the date on which Turkey recognised the jurisdiction of the Convention organs to examine individual petitions. The Court notes that the land was registered in the name of the Treasury twice, in 1960 and 1977 respectively, both in a period prior to that date.

Consequently, this part of the application is outside the Court’s competence ratione temporis and must, accordingly, be rejected as being incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.

The Court reiterates that, according to the established case-law of the Court, Article 1 of Protocol No. 1 aims at securing the peaceful enjoyment of existing possessions, and does not guarantee any right to acquire property. In the instant case, it is undisputed that neither the applicant nor his family has ever acquired title to the land. The applicant’s complaint under Article 1 of Protocol No. 1 concerned an alleged deprivation of land which had been used by his family for many years without such entitlement. Furthermore, there is nothing in the file to suggest that the national courts acted in an arbitrary or unreasonable way when reaching their decisions. The Court notes that Law no. 3402 was clear in its wording that a person could not claim title to a land if he or she already possessed title(s) to land in a given district that measured up to 100 hectares. Accordingly, the applicant’s claim had been dismissed by the domestic court on the ground that it had already granted the applicant title to a plot of land in that district which measured 100 hectares.

Thus, under the relevant law, as applied and interpreted by the domestic authorities, the applicant had neither a right nor a claim amounting to a legitimate expectation, in accordance with the Court’s case-law, to obtain title to the property in question, and therefore no “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Mehmet Karayazgan v. Turkey (dec.), no. 32371/03, 8 February 2007; Remzi Balcı v. Turkey (dec.), no. 68545/01, 10 January 2008).

It follows that the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

The Court notes that Article 13 does not contain a general guarantee of legal protection in respect of all substantive rights. It relates exclusively to those cases in which the applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated (see, mutatis mutandis, Nikola Gavella v. Croatia (dec.), no. 33244/02, 11 July 2006).

In this connection the Court refers to its above findings according to which the applicant’s complaint under Article 1 of Protocol No. 1 is outside its competence ratione materiae.

It follows that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President