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KARATAS AND YILDIZ AND OTHERS v. TURKEY - 4889/05 [2009] ECHR 1123 (16 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1123.html
Cite as:
[2009] ECHR 1123
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SECOND
SECTION
CASE OF KARATAŞ AND YILDIZ AND OTHERS v. TURKEY
(Applications
nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06,
43031/06, 43019/06, 43038/06 and 43054/06)
JUDGMENT
STRASBOURG
16 July 2009
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 Karataş and Yıldız and Others v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in ten applications
(nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05,
42996/06, 43031/06, 43019/06, 43038/06 and 43054/06) 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 thirty-one Turkish nationals (“the applicants”, see
the annex hereto), on 27 December 2004, 10 June, 5 and 29
September 2005 and 4 October 2006 respectively. Certain applicants
were party to more than one application.
The
applicants were represented by Mr S. Kaya, a lawyer practising in
Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
On
28 August 2008
the Court declared application no. 4897/05 partly inadmissible and
decided to communicate to the Government the complaint concerning the
length of the criminal proceedings. On 15
January and 12 June 2008 the President of the
Second Section decided to give notice of the remaining applications
to the Government. It was also decided to rule on the admissibility
and merits of the applications at the same time (Article 29
§ 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
All
of the applicants are from the Çayçatı village of
Muş. Numerous plots of land in the village have been used by the
applicants’ parents or grandparents without a title deed since
the 1930s. These plots were registered in the name of the Treasury in
1960 pursuant to Law no. 4753. In 1977 they were re-registered in the
name of the Treasury pursuant to the Land Registry Act (Law no. 766).
On
various dates in 1989, the applicants instituted civil proceedings in
the Varto Civil Court of First Instance pursuant to Law no. 3402 and
requested the annulment of the titles to the plots. Claiming that the
plots in question had been in their families’ possession for
many years, the applicants further requested that the land be
registered in their name. The first-instance courts delivered their
initial judgments on various dates between 1989 and 1991 in the
presence of the representatives of both parties. The claims made by
İsmail Akbulut, one of the applicants in cases nos. 4897/05
and 33694/05 were rejected on 20 December 1990 on the ground that he
had already been granted the maximum amount of land in the same area
permitted by the relevant law. The applicant did not appeal.
Further
details concerning the present applications, including the dates of
the domestic judgments and notifications, may be found in the
attached list.
THE LAW
I. JOINDER OF THE APPLICATIONS
The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common factual
and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants 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...”
A. Admissibility
The Government firstly pointed out that Turkey has
accepted the competence of the Court to examine individual petitions
only in respect of facts or events which have occurred since 22
January 1990. On that account, they contended that the Court can
consider only the period after 22 January 1990. The Government
secondly asked the Court to reject the case of Bingöl and
Others v. Turkey (33694/05) for non-compliance with the six-month
time-limit. In their view, the judgment had become final on 5 June
2002 at the end of the 30-day period for an appeal by the Treasury.
Concerning the Government’s first objection, the
Court reiterates that it has already held in a previous case that its
competence ratione temporis began on 28 January 1987, the date
on which Turkey’s declaration accepting the right of individual
petition came into force (see Cankoçak v. Turkey,
nos. 25182/94 and 2956/95, § 26, 20 February 2001). Noting that
the proceedings in the present applications were initiated on various
dates in 1989, the Court considers that the Government’s
jurisdictional objection cannot be upheld.
As
for the Government’s request to dismiss the application in the
case of Bingöl and Others v. Turkey (33694/05), the Court
points out that the official note on the judgment of 20 December
1990, which is signed by the registrar and the judge of the Varto
Civil Court of First Instance, states that the judgment became final
on 28 June 2005. Since the application was lodged with the Court on 5
September 2005, the Court considers that it complied with the
six-month time-limit laid down in Article 35 § 1 of the
Convention.
In
addition, the Court observes that the domestic court rejected the
claims of İsmail Akbulut, who is the applicant in the case of
İsmail Akbulut v. Turkey (4897/05) and one of the
applicants in Bingöl and Others v. Turkey
(33694/05), on 20 December 1990. His representative was present when
the judgments were delivered. The applicant did not appeal in either
case. The official note mentioned above in paragraph 10 does not
specifically indicate when the judgment became final. However the
Court notes that the Treasury had no legal interest in appealing
against these judgments, which interest is one of the requirements in
Turkish law for lodging an appeal. Moreover, the Court observes that
the applicant – who was represented by a lawyer, whose title
claims were rejected as he had already been granted the legally
permitted maximum amount of land and who did not appeal in 1991 and
1992 in respect of either of his claims – did not lodge his
complaints with the Court until 5 September 2005.
Against
this background, the Court considers that, as regards Mr Akbulut’s
complaints, the object and purpose of Article 35 § 1 of
the Convention are best served by taking as the starting point of the
relevant six-month period the date of the hearing at which the
judgments were declared in the presence of the applicant’s
lawyer, i.e. 20 December 1990 (see, mutatis mutandis, Hatip
Çelik v. Turkey (dec.), no. 52991/99, ECHR 2004 X).
It follows that the applications lodged by
İsmail Akbulut were brought out of time and must be rejected
under Article 35 §§ 1 and 4 of the Convention.
Consequently,
the Court notes that, with the exception of İsmail Akbulut, the
applicants’ complaint about the length of the proceedings 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
Government maintained that the delay had been due to the applicants’
failure to pay the fees for service of the first-instance courts’
judgments delivered in their favour between 1989 and 1990.
Consequently, the judgments had not been duly served on the Treasury
and had not become final. The applicants had furthermore refrained
from taking any other action to execute the judgments and had chosen
to remain inactive for long periods while waiting for the judgments
to become final. Therefore the eleven-to-thirteen-year delays prior
to the appeal stage had been caused by the applicants’ conduct
and negligence.
The
Court notes that the period to be taken into consideration began in
1989 and ended on various dates between 2004 and 2006. It thus lasted
between fourteen and seventeen years for two levels of jurisdiction,
producing between two to six judgments. In all the cases the
first-instance court judgments were served on the Treasury after a
delay of eleven to thirteen years (see annex).
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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute.
The
Court firstly observes that it is not clear from the case file
whether, and if so when and by which party, the fees for service were
paid following the delivery of the judgments of the first-instance
courts. Furthermore, it is also unclear whether the Treasury, being a
State enterprise and hence exempt, in principle, from all fees and
charges, was also exempt from the payment of fees for service in the
present cases.
The
Court points out that in five of the present applications
(nos. 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06),
although the first-instance court judgments of 20 December 1990 were
served on the applicants on 3 August 1992, they were not served on
the Treasury until 6 May 2002, some eleven years later. This
indicates that at least the applicants’ share of the fees for
service in those cases was paid in due time and that, despite that
payment, a lengthy delay in service on the Treasury had still taken
place.
The
Court notes the Government’s arguments that the applicants had
not taken any steps to finalise or execute the judgments. However, it
reiterates that it is for the Contracting States to organise their
judicial system in such a way that their courts are able to guarantee
everyone the right to obtain a final decision on disputes concerning
civil rights and obligations within a reasonable time (Comingersoll
S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR
2000 IV). In this connection, even assuming that the Treasury
was not exempt from the fees, to expect the applicants to take
additional steps, such as the payment of the fees for service on
behalf of the Treasury, in an attempt to make the judgments final
would have imposed an excessive burden on them (see, mutatis
mutandis, Ülger v. Turkey, no. 25321/02, §
40, 26 June 2007). In the light of the above, the Court holds that
such a lengthy delay in service of the first-instance courts’
judgments on the parties cannot be said to have been reasonable.
Having
regard to its case-law on the subject, the Court concludes that in
the instant cases the length of the proceedings was excessive and
failed to meet the “reasonable-time” requirement (see,
among many other authorities, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000 VII). There has accordingly been
a breach of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Article 1 of Protocol No. 1, the applicants firstly asserted that
the initial registration of the land in the name of the Treasury and
the subsequent deprivation of their land had violated their right to
property. In conjunction with this complaint they invoked Articles 6,
13, 14. They alleged that many people in other regions had acquired
title to their land whereas they had had to have recourse to domestic
proceedings to recover their title and that
there had been no effective remedy against the interference with
their property by the authorities.
The
Government contested these allegations and argued that the applicants
did not have victim status.
The
Court notes that this complaint is closely linked to the one examined
above and must therefore likewise be declared admissible, except in
the case of İsmail Akbulut (see paragraph 12 above).
However, having regard to its finding of a violation
of Article 6 § 1 (see paragraph 19 above), the Court does
not consider it necessary to examine the merits of this complaint
separately (Ezel Tosun v. Turkey, no. 3379/02, §
28, 10 January 2006).
IV. 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
applicants claimed various amounts in respect of pecuniary damage
calculated on the basis of the size of the land in question and
5,000 euros (EUR) per person, per procedure, in respect of
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.
As
for the non-pecuniary damage, the Court observes that a common
interest was at issue in all nine cases before the Court. They were
brought in the same year, mainly at three monthly intervals, by
inhabitants of the same village pursuing the same objective, namely
claiming title to different parcels of land. All thirty-one
applicants were represented by the same lawyer, both in the domestic
proceedings and before the Court. The length of the proceedings at
issue are some sixteen years in six of the applications, fifteen
years in another two, and fourteen years in the remaining admissible
application. Six of the applicants were simultaneously involved in
multiple proceedings claiming title to different plots.
Having
regard to the foregoing, the Court notes that the extension of the
impugned proceedings beyond a “reasonable-time”
undoubtedly caused the applicants non-pecuniary damage which would
justify an award. It also takes into consideration the number of
applicants, the nature of the violation found and the need to
determine the amount in such a way that the overall sum is compatible
with the relevant case-law and is reasonable in the light of what was
at stake in the proceedings in question. In the light of the
Kakamoukas and Others v. Greece case and the above background,
the Court considers that all the applicants must be awarded the same
amount (see, mutatis mutandis, Kakamoukas and Others v.
Greece [GC], no. 38311/02, § 48, 15 February 2008).
Consequently, irrespective of the number of sets of proceedings
concerned, it awards each of the thirty applicants whose complaints
have been declared admissible
the full sum claimed under the head of non-pecuniary damage (EUR
5,000).
B. Costs and expenses
The
applicants also claimed EUR 2,000 for each of the nine applications
that had been declared admissible in respect of the costs and
expenses incurred before the domestic courts and EUR 3,000 per person
for those incurred before the Court.
The
Government contested these claims.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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, the Court observes
that the applicants did not produce any document in support of their
claims. Accordingly, the Court makes no award under this head.
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
Decides to join the applications;
2. Declares the applications admissible, except for
the application in the case of İsmail Akbulut v. Turkey
(4897/05) and the complaints of İsmail Akbulut in the case of
Bingöl and Others v. Turkey (33694/05), which are
declared inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in each admissible case;
Holds
(a) that
the respondent State is to pay, within three months, EUR 5,000
(five thousand euros) to each of the thirty applicants in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
|
Application name and number,
and name and year of birth of the applicants
|
Parcel nos.
|
Commencement date and
subsequent proceedings
|
Final judgment
|
Notification of final judgment
(where needed)
|
Date of application to the
Court
|
Overall length
|
|
1. Mehmet
Emin Karataş and Derviş Yıldız v. Turkey
(no. 4889/05)
Mehmet Emin Karataş
(1930)
Derviş Yıldız (1945)
|
33, 39
|
Beginning
of proceedings: 19.09.1989
First
judgment: 20.12.1990
Service
on the Treasury: 06.05.2002
Court of Cassation: 13.02.2004
|
13.02.2004
|
08.07.2004
|
27.12.2004
|
14 years, 4 months and 28 days
|
|
2. İsmail
Akbulut v. Turkey
(no. 4897/05)
İsmail Akbulut (1933)
|
5
|
Beginning
of proceedings: 25.09.1989
First
judgment: 20.12.1990
Service on the applicant:
03.08.1992
|
20.12.1990
|
03.08.1992
|
27.12.2004
|
Inadmissible for non-compliance with six-month
rule.
|
|
3. Bingöl
v. Turkey
(no. 24009/05)
Hilal Bingöl (1919)
|
17, 18, 26, 37, 41
|
Beginning
of proceedings: 23.01.1989
First
judgment: 19.07.1989
Court
of Cassation: 20.04.1990
Second
judgment: 29.05.1991
Service
on the applicant: 04.06.2004
Service
on the Treasury: 27.01.2005
Court of Cassation: 27.01.2005
|
27.01.2005
|
|
10.06.2005
|
16 years and 8 days
|
|
4. Bingöl
and Others v. Turkey
(no. 33694/05)
Orhan Bingöl
(1961)
Ferman Şenyürek
(1964)
Felemez Yıldız
(1960)
Yasin Savaş
(1961)
İzzettin Savaş
(1952)
Halil Savaş
(1922)
Haydar Daştan
(1949)
İsmail Akbulut
(1933)
Fahrettin Bingöl
(1964)
Hasan Turhan (1968)
Mikail Tunç ( 1961)
|
7
|
Beginning
of proceedings: 29.08.1989
First
judgment: 20.12.1990 (claims of İsmail Akbulut rejected)
Service
on Treasury: 05.06.2002
Second
judgment (rejection of the Treasury’s appeal request as out
of time): 02.06.2004
Court of Cassation: 07.04.2005
|
07.04.2005
|
|
05.09.2005
|
15 years, 7 months and 12 days,
except for complaints lodged by İsmail Akbulut, which are
inadmissible for non-compliance with six- month rule.
|
|
5. Bingöl
v. Turkey
(no. 37759/05)
Giyasettin Bingöl
(1950)
Celalettin Bingöl (1952)
|
7
|
Beginning
of proceedings: 29.08.1989
First
judgment: 20.12.1990
Service
on the Treasury: 05.06.2002
Second
judgment (rejection of the Treasury’s appeal request as out
of time): 02.06.2004
Court of Cassation: 07.04.2005
|
07.04.2005
|
|
29.09.2005
|
15 years, 7 months and 12 days
|
|
6. Karataş
and Şahin v. Turkey
(no. 42996/06)
Mehmet Emin Karataş (1930) Abdullah Şahin
(1942)
|
56
|
Beginning
of proceedings: 25.09.1989
First
judgment: 20.12.1990
Service
on the applicants: 03.08.1992
Service
on the Treasury: 06.05.2002
Court
of Cassation: 13.10.2003
Second
judgment: 31.05.2004
Court
of Cassation: 24.02.2005
Third
judgment: 15.09.2005
Court of Cassation: 20.04.2006
|
20.04.2006
|
|
04.10.2006
|
16 years, 3 months and 28 days
|
|
7. Ali
İhsan Şenyürek v. Turkey
(no. 43031/06)
Ali İhsan Şenyürek (1940)
|
37
|
Beginning
of proceedings: 23.01.1989
First
judgment: 20.12.1990
Service
on the applicant: 03.08.1992
Service
on the Treasury: 06.05.2002
Court
of Cassation: 13.10.2003
Second
judgment: 02.06.2004
Court
of Cassation: 12.01.2005
Third
judgment: 15.09.2005
Court of Cassation: 20.04.2006
|
20.04.2006
|
|
04.10.2006
|
17 years, 2 months and 30 days
|
|
8. Ali
İhsan Şenyürek and Nusrettin Özdemir v.
Turkey
(no. 43019/06)
Ali İhsan
Şenyürek (1940)
Nusrettin Özdemir (1934)
|
47
|
Beginning
of proceedings: 04.10.1989
First
judgment: 20.12.1990
Service
on the applicants: 03.08.1992
Service
on the Treasury: 06.05.2002
Court
of Cassation: 13.10.2003
Second
judgment: 31.05.2004
Court
of Cassation: 24.02.2005
Third
judgment: 15.09.2005
Court of Cassation: 13.04.2006
|
13.04.2006
|
|
04.10.2006
|
16 years, 6 months and 12 days
|
|
9. Ali
İhsan Şenyürek and Six Others v. Turkey
(no. 43038/06)
Mustafa Şahin
(1935)
Ali Turhan (1948)
Abdurrahman Çelik (1954)
Tevfik Şahin
(1948)
Şevfik Şahin
(1960)
Abdullah Turhan
(1948)
Ali İhsan Şenyürek (1940)
|
31
|
Beginning
of proceedings: 26.09.1989
First
judgment: 20.12.1990
Service
on the applicants: 03.08.1992
Service
on the Treasury: 06.05.2002
Court
of Cassation: 18.10.2003
Second
judgment: 31.05.2004
Court
of Cassation: 10.03.2005
Third
judgment: 20.10.2005
Court of Cassation: 27.04.2006
|
27.04.2006
|
|
04.10.2006
|
16 years, 7 months and 4 days
|
|
10. Ali
İhsan Şenyürek and Ten Others v. Turkey
(no. 43054/06)
Mustafa Oktan
(1954)
Ali İhsan
Şenyürek (1940) Abdulkerim Şahin (1956)
Kutbettin Gündüz
(1936)
Abdullah Şahin
(1942)
Selahattin Ataç
(1964)
Cindi Gündüz
(1337)
Mustafa Şahin
(1935)
Haydar Ataç
(1956)
Tevfik Şahin
(1948)
Şevfik Şahin (1960)
|
23, 34
|
Beginning
of proceedings: 19.09.1989
First
judgment: 20.12.1990
Service
on the applicants: 03.08.1992
Service
on the Treasury: 03.05.2002
Court
of Cassation: 23.02.2004
Second
judgment: 02.06.2004
Court
of Cassation: 17.03.2005
Third
judgment: 15.09.2005
Court of Cassation: 04.05.2006
|
04.05.2006
|
|
04.10.2006
|
16 years, 7 months and 18 days
|
