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FOURTH
SECTION
CASE OF NAMLI AND OTHERS v. TURKEY
(Application
no. 51963/99)
JUDGMENT
STRASBOURG
5
December 2006
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 Namlı and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 51963/99) 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 six Turkish nationals, Mr Lami Daim Namlı,
Mrs Sabiha Namlı, Mr Turan Namlı, Ms Ümit Namlı,
Mrs Muhterem Tuncay and Mrs Münüse Tepebaşı
(“the applicants”), on 28 June 1999.
- The
Turkish Government (“the Government”) did not designate
an Agent for the purpose of the proceedings before the Court.
- On
8 March 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the length of the
proceedings to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
- The
applicants were born in 1958, 1923, 1949, 1961, 1955 and 1950
respectively and live in Tokat.
- On
21 November 1957 the Koruluk village administration, the Ministry of
Treasury and the Forest Directorate requested the annulment of the
record in the title deed registry of the applicants’ father’s
and other persons’ (hereinafter “the defendants”)
ownership of four plots of land (nos. 49, 50, 51 and 52)
situated in the village of Koruluk.
- On
4 November 1971, 2 December 1975 and 16 March 1989 the Bafra Cadastre
Court gave a decision on the merits of the case. Each of these
decisions was in turn quashed by the Court of Cassation.
- In
the course of the proceedings several defendants including
Mr Esat Namlı, who was the husband of the second
applicant and the father of the remaining applicants, died. Shortly
thereafter, in 1990, the applicants became parties to the
proceedings.
- On
28 November 1996 the Bafra Cadastre Court decided to annul the record
in the title deed registry except for a part of plot no. 49 which
remained under the name of the defendants.
- On
10 March 1998 the Court of Cassation upheld the judgment of the
first-instance court.
- On
18 December 1998 the Court of Cassation dismissed the applicants’
request for rectification of its decision. This decision was not
served on the applicants. However, it was sent to the registry of the
Bafra Cadastre Court on 4 January 1999.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the length of the civil proceedings
exceeded the “reasonable time” requirement under Article
6 § 1 of the Convention. The relevant part of Article 6 § 1
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...”
A. Admissibility
- The
Government asked the Court to dismiss the application for the failure
of the applicants to exhaust domestic remedies, as required under
Article 35 § 1 of the Convention. In this regard, they
maintained that the applicants did not raise the substance of their
complaint before the domestic courts and did not rely on the
Convention. The Government further maintained that the applicants had
failed to comply with the six-month rule. They submitted that the
applicants should have lodged their complaint with the Court within
six months following the Court of Cassation’s decision of
18 December 1998.
- The
applicants refuted the Government’s claims.
- As
regards the first limb of the Government’s objections, the
Court reiterates that it has already examined and rejected the
Government’s similar objections in previous cases (see, in
particular, Karakullukçu v. Turkey, no.
49275/99, §§ 27-28, 22 November 2005). The Court finds no
particular circumstances in the instant case, which would require it
to depart from its findings in the above-mentioned application. It
therefore rejects the Government’s objection under this head.
- As
to whether the applicants have complied with the six-month rule, the
Court reiterates that where an applicant is entitled to be served ex
officio with a written copy of the final domestic decision the
object and purpose of Article 35 § 1 of the Convention are best
served by counting the six-month period as running from the date of
service of the written judgment (see Worm v. Austria, judgment
of 29 August 1997, Reports of Judgments and Decisions 1997 V,
p. 1547, § 33). The Court observes that, in civil cases, it is
the practice of the Court of Cassation to serve their decisions on
the parties. However, in the instant case, the applicants were never
served with the Court of Cassation’s decision dated 18 December
1998. The Government did not provide any explanation for this. In the
Court’s opinion, the earliest date on which the applicants
could have been informed about the content of the Court of
Cassation’s decision was on 4 January 1999, the date on which
the Court of Cassation’s decision arrived at the registry of
the first-instance court. The application was lodged with the Court
on 28 June 1999. In view of the above, the Court considers that
the application was introduced within the six-month time-limit
provided in Article 35 § 1 of the Convention. It therefore
rejects the Government’s objection under this head also.
- Moreover,
the Court notes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. No other
grounds for declaring it inadmissible has been established. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
Government requested the Court to take into account solely the
proceedings which occurred after 28 January 1987, the date of deposit
of Turkey’s declaration recognising the right of individual
petition to the European Commission of Human Rights. They further
maintained that the period to be taken into consideration in the
instant case began when the applicants became parties to the
proceedings.
- The
applicants disputed the Government’s arguments.
- The
Court reiterates that its case-law on the intervention of third
parties in civil proceedings makes the following distinction: where
the applicant has intervened in domestic proceedings only on his or
her own behalf the period to be taken into consideration begins to
run from that date, whereas if the applicant has declared his or her
intention to continue the proceedings as an heir, he or she can
complain of the entire length of the proceedings (see, in particular,
Cocchiarella v. Italy [GC], no. 64886/01, § 113,
ECHR 2006 ...).
- The
period to be taken into consideration therefore began on 21 November
1957 when the Koruluk village administration, the Ministry of
Treasury and the Forest Directorate contested the title-deed registry
records and ended on 18 December 1998, when the Court of
Cassation dismissed the applicants’ request for rectification
of its decision. They therefore lasted approximately forty-one years
before the first-instance court and the Court of Cassation, which
each examined the case four times.
- The
Court’s jurisdiction ratione temporis permits it to
consider only the period of eleven years and ten months that elapsed
after 28 January 1987, the date of deposit of Turkey’s
declaration recognising the right of individual petition to the
European Commission of Human Rights. It must nevertheless take
account of the state of the proceedings at the time when the
aforementioned declaration was deposited (see Şahiner v.
Turkey, no. 29279/95, § 22, ECHR 2001-IX; and Cankoçak
v. Turkey, nos. 25182/94 and 26956/95, §§ 25-26,
20 February 2001). On that critical date the proceedings had already
lasted more than twenty-nine years and two
months.
2. Reasonableness of the length of the proceedings
- The
Government maintained that the case was a complex one concerning a
dispute over ownership of a property and involving a substantial
number of defendants, some of whom had died in the course of the
proceedings and had been replaced by their heirs. On this point, the
Government argued that the length of the proceedings was mainly
caused by the time spent by the domestic authorities in finding the
heirs of the deceased defendants.
- The
applicants maintained their allegations.
- 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 considers that there were substantial delays throughout the
proceedings which lasted approximately forty-one years - eleven years
and ten months of which fall within the Court’s jurisdiction
ratione temporis. It can accept that the case was complex
owing to the number of parties and the nature of the dispute.
However, it cannot be said that this in itself justified the entire
length of the proceedings. In the Court’s opinion, the length
of the proceedings, in the instant case, can only be explained by the
failure of the domestic courts to deal with the case diligently.
Having examined all the material submitted to it and having regard to
its case-law on the subject, the Court considers that in the instant
case the length of the proceedings 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, costs and expenses
- The
applicants claimed 1,808,000 United States dollars (USD)
(approximately 1,463,968 euros (EUR)) in respect of pecuniary damage
and USD 2,000,000 (approximately EUR 1,619,433) in respect of
non pecuniary damage.
The applicants did not seek reimbursement of any
costs and expenses in connection with the proceedings before the
Court.
- 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 applicants must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Taking
into account the circumstances of the case and having regard to its
case-law, the Court awards the applicants, jointly, EUR 30,000.
B. 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 remainder of 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 applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 30,000
(thirty thousand euros) in respect of non-pecuniary damage, to
be converted into new Turkish liras at the rate applicable at the
date of the settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
