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URL: http://www.bailii.org/eu/cases/ECHR/2011/1760.html
Cite as: [2011] ECHR 1760

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SECOND SECTION

DECISION

Application no. 7383/06
by Buket ÖZENBAŞ
against Turkey

The European Court of Human Rights (Second Section), sitting on 27 September 2011 as a Committee composed of:

David Thór Björgvinsson, President,
Giorgio Malinverni,
Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 16 February 2006,

Having regard to the declaration submitted by the respondent Government on 28 January 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Buket Özenbaş, is a Turkish national who was born in 1947 and lives in Muğla. The Turkish Government (“the Government”) were represented by their Agent.

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

The application concerns several sets of proceedings which can be divided into two groups.

The first group consists of two sets of proceedings, which were brought by a third person on 17 February 1997 against the applicant for the annulment of her title deed and the annulment of a fictitious sale. These two sets of proceedings were later joined.

On 25 March 2003 the Muğla Civil Court of General Jurisdiction accepted the plaintiff’s case and annulled the applicant’s title deed.

On 14 July 2005 the Court of Cassation upheld the judgment of the first-instance court.

The final decision concerning these proceedings was served on the applicant on 18 August 2005.

The second group concerns proceedings brought on 20 May 2005 by the applicant against third persons for the annulment of a certain protocol.

On 20 September 2005 the Muğla Civil Court of General Jurisdiction dismissed the case as it found that the applicant was not a party to the protocol and as she had no right to bring such proceedings.

On 4 October 2007 the Court of Cassation upheld that judgment.

COMPLAINTS

The applicant complained under Articles 6 and 10 of the Convention that both sets of proceedings had lasted unreasonably long. She also maintained that the Muğla Civil Court of General Jurisdiction had lacked impartiality and that it had failed to examine her witnesses. She further argued that the court had failed to deliver reasoned judgments.

Relying upon Article 1 of Protocol No. 1 to the Convention, the applicant submitted that she had been deprived of her property as a result of the outcome of the proceedings.

THE LAW

1. As to the complaint about the length of proceedings

The applicant complained about the length of the first set of civil proceedings, brought against her by a third person. She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 28 January 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“Je déclare que le Gouvernement de la République de Turquie offre de verser à la requérante, M^me Buket Özenbaş, la somme de 3 500 (trois mille cinq cents) euros, couvrant tout préjudice matériel et moral ainsi que 500 (cinq cents) euros, couvrant l’ensemble des frais et dépens, plus tout montant pouvant être dû à titre d’impôt par le requérant, sommes qu’il considère comme appropriées à la lumière de la jurisprudence de la Cour.

Cette somme sera convertie en livres turques au taux applicable à la date du paiement, et exemptes de toute taxe éventuellement applicable. Elle sera payée dans les trois mois suivant la date de la notification de la décision de la Cour rendue conformément à l’article 37 § 1 de la Convention européenne des droits de l’homme. A défaut de règlement dans ledit délai, le Gouvernement s’engage à verser, à compter de l’expiration de celui-ci et jusqu’au règlement effectif de la somme en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque centrale européenne, augmenté de trois points de pourcentage. Ce versement vaudra règlement définitif de l’affaire.

Le Gouvernement considère que la procédure interne engagée par la partie requérante a connu une durée excessive au sens de la jurisprudence bien établie de la Cour (Daneshpayeh c. Turquie, no 21086/04, 16 juillet 2009). Il invite respectueusement la Cour à dire qu’il ne se justifie plus de poursuivre l’examen de la requête et à la rayer du rôle conformément à l’article 37 de la Convention.”

In a letter of 23 March 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and that the unilateral declaration disregarded the other complaints she had raised in her application.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003 VI; also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.), no. 28953/03; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Silva Marrafa v. Portugal (dec.), no. 56936/08, 25 May 2010; Karal v. Turkey (dec.), no. 44655/09, 29 March 2011, and Barış İnan v. Turkey (dec.), no. 20315/10, 24 May 2011).

The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 V; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007, and Daneshpayeh v. Turkey, no. 21086/04, §§ 28 29, 16 July 2009).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

In view of the above, it is appropriate to strike this part of the case out of the list.

2. As to the other complaints

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the second set of proceedings before the Muğla Civil Court of General Jurisdiction. The Court notes that the impugned proceedings began on 20 May 2005 and ended on 4 October 2007, having thus lasted for a period of two years and four months, and it considers that this period does not raise an issue under the Convention.

Relying upon Articles 6 and 10 of the Convention, the applicant maintained that the Muğla Civil Court of General Jurisdiction had lacked impartiality and that it had failed to examine her witnesses. She further argued that the court had failed to deliver reasoned judgments. Having examined all the material at its disposal, the Court finds that these complaints are wholly unsubstantiated.

Finally, the applicant submitted under Article 1 of Protocol 1 to the Convention that she was deprived of her property due to the outcome of the proceedings. The Court notes that the complaint directly concerns the domestic court’s interpretation of the law and must be evaluated from the standpoint of Article 6 of the Convention alone. The Court reiterates that it is not a court of fourth instance and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001 II). In the present case, there is no appearance of arbitrariness in the domestic court’s evaluation of national law.

Accordingly, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention, in so far as it concerns the complaint about the length of the first set of proceedings;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos David Thór Björgvinsson
Deputy Registrar President