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FIFTH
SECTION
CASE OF NALBANT v. TURKEY
(Application
no. 61914/00)
JUDGMENT
STRASBOURG
10
August 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 Nalbant v. Turkey,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr R. Türmen,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61914/00) 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 a Turkish national, Mr Mahmut Nalbant, on 7
August 2000.
- By
a letter of 15 August 2005, the Registry was informed of the death of
the applicant, Mr Mahmut Nalbant on 28 March 2005. His wife,
Mrs Selime Nalbant, and his children, Mehmet Nalbant,
Münevver Bozdemir and Havva Nalbant Tekin, declared their
intention to pursue the application (“the applicants”).
- The
applicants were represented by the fourth applicant,
Mrs Havva Nalbant Tekin, a lawyer practising in Tekirdağ.
The Turkish Government did not designate an Agent for the purpose of
the proceedings before the Court.
- On
12 May 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning length of the
civil 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.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
application was initially introduced by Mahmut Nalbant who was born
in 1936 and was living in Kırklareli. Following his death on 28
March 2005, his wife and his children (hereinafter “the
applicants”) expressed their intention to pursue the
application on 15 August 2005. The applicants were born in 1943,
1961, 1963 and 1973 respectively. Selime Nalbant, and Mehmet Nalbant
live in Kırklareli and Münevver Bozdemir and Havva Nalbant
Tekin live in Tekirdağ.
- In
1927 Mahmut Nalbant’s father arrived as an immigrant from
Bulgaria. The applicants allege that in 1934 Mahmut Nalbant’s
father was given, together with other people, plot no. 4086 for
settlement (iskan). However, the plot of land was not
registered in their names in the Land Registry.
- On
13 September 1961 the Land Registry Commission (Tapulama
Komisyonu) attached to the General Directorate of Land
Registration (Tapu ve Kadastro Genel Müdürlüğü)
conducted a land registry survey (tapulama tespiti) and
considered that the plot of land (“plot no. 4086”) in the
Evrensekiz village should be registered in the name of the Treasury.
- On
an unspecified date twenty-eight complainants objected to the results
of the survey. It is to be noted that Mahmut Nalbant does not figure
in the list of complainants. The applicants claimed that he was not
notified of this decision.
- On
20 November 1970 the Land Registry Commission declared that it lacked
competence rationae materie and transferred the case to the
Cadastre Court. The latter sent the case-file to the Land Registry
Commission and on 3 September 1971 the Land Registry Commission
dismissed the objections of the complainants.
- In
1972 twenty-six persons including Mahmut Nalbant (hereinafter “the
plaintiffs”) filed an action with the Lüleburgaz Cadastre
Court and requested the latter to set aside the decision of the Land
Registry Commission. The date of petition submitted by Mahmut Nalbant
is 8 August 1972.
- On
9 November 1978 the proceedings before the Lüleburgaz Cadastre
Court commenced.
- On
3 February 1981 the court requested the Kırklareli Land and
Settlement Directorate to investigate whether any plots of land were
given as settlement in the Evrensekiz village and if so, whether the
names of the plaintiffs figured in the registries.
- On
20 May 1981 the Kırklareli Land and Settlement Directorate
informed the court that only three families figured in the settlement
records as having been given a settlement in the Evrensekiz village.
- On
10 July 1981, 14 October 1981 and 23 November 1981 the Kırklareli
Land and Settlement Directorate informed the court that the names of
the plaintiffs did not figure in any of the registers relating to
settlement.
- On
31 May 1983 the court conducted an onsite inspection. According to
the experts’ report of 6 June 1983, the impugned land together
with plot no. 3584, 3585 and 3587, was divided into twenty-nine
parts, on which the plaintiffs were farming. Mahmut Nalbant was using
16000 square metres of this land.
- On
7 May 1993 the court conducted an onsite inspection. On 14 May 1993
an expert report was submitted to the court.
- On
22 September 1993 the court requested the Land Directorate to send a
sketch of the land together with its surroundings.
- On
22 December 1993 the court requested the Land Directorate to submit
the files concerning the plot of land together with fourteen
neighbouring plots of land. On 28 February 1994 the Land Directorate
submitted the requested files.
- On
23 May 1996 the court conducted an onsite inspection. According to
the expert report drafted on 29 May 1996 it was impossible to
determine whether the land was previously a meadow since it was being
used as farmland.
- On
24 May 1996 Lüleburgaz Land Registry Directorate submitted
additional documents concerning title-deeds and registry records.
- On
29 June 2001 the court conducted an onsite inspection. According to
the report prepared by an expert who took into account witness
statements and expert testimony, the plot of land was previously a
meadow but that the plaintiffs were using the land as farmland.
- On
18 July 2001 Mahmut Nalbant submitted his comments on the results of
the onsite inspection and his observations on the merits.
- Between
8 April 1987 and 18 July 2001 the court held numerous hearings.
During this time, the court adjourned the onsite inspection
twenty three times, either due to adverse weather conditions (6
times) or the plaintiffs’ failure to attend the onsite
inspection (14 times). On at least three occasions the onsite
inspection could not take place because another onsite inspection was
being conducted. In the course of the proceedings, several hearings
were adjourned pending the intervention of the heirs of some of the
plaintiffs to the proceedings. During this time, Mahmut Nalbant and
his lawyer did not participate in the hearings held on 16 September
and 25 November 1987 and on 9 September 1996.
- On
18 July 2001 the Lüleburgaz Cadastre Court dismissed the case
and held that the plot of land should be registered in the name of
the Treasury. It considered that the land in question was public
property because it was meadowland and that therefore, the plaintiffs
could not acquire ownership of it by de facto possession. It
further noted that no official document was found supporting the
plaintiffs’ arguments that they were given the plot of land for
settlement.
- On
2 September 2001 Mahmut Nalbant appealed against the decision of the
first-instance court. In his petition, Mahmut Nalbant submitted that
the length of the proceedings had breached Article 6 of the European
Convention on Human Rights.
- On
20 October 2003 the Court of Cassation upheld the judgment of the
first-instance court. It further dismissed Mahmut Nalbant’s
request for a rectification of its judgment on 29 April 2004.
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 failure to
exhaust domestic remedies, under Article 35 § 1 of the
Convention. In this regard, the Government maintained, in particular,
that Mahmut Nalbant did not raise the substance of his complaint
before the domestic courts and did not rely on the Convention.
- The
applicants disputed the allegations of the Government. In particular,
they pointed out that during the proceedings Mahmut Nalbant had
requested the domestic court to speed up the proceedings and had
relied on the Convention.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Karakullukçu v. Turkey, no. 49275/99, §§
27-28, 22 November 2005). The Court finds no particular circumstances
in the instance 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.
- 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 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.
- The
applicants refuted the Government’s argument. In particular,
they maintained that the domestic proceedings began on 1961 and ended
on 29 April 2004.
- The
Court considers that the period to be taken into consideration in
determining whether the proceedings satisfied the “reasonable
time” requirement laid down by Article 6 § 1 began on 8
August 1972 when Mahmut Nalbant filed an action with the Lüleburgaz
Cadastre Court and ended on 29 April 2004, when the Court of
Cassation dismissed his request for a rectification of its decision.
They therefore lasted approximately thirty one years and nine months
before the Lüleburgaz Cadastre Court and the Court of Cassation,
which examined the case twice.
- The
Court’s jurisdiction ratione temporis permits it to only
consider the period of seventeen years and three 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 c.
Turquie, no 29279/95, § 22, CEDH 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 fourteen
years and six months.
2. Reasonableness of the length of the proceedings
- The
Government maintained that the case was a complex one concerning a
dispute over title to a large area of land and involving a
substantial number of plaintiffs, some of whom had died in the course
of the proceedings and had been replaced by their heirs. They
submitted that there was no delay attributable to the authorities and
that the length of the proceedings was caused by the number of
adjournments sought by the plaintiffs concerning an onsite inspection
of the court. The Government noted that Mahmut Nalbant failed to
attend a number of hearings, that his representative requested
several extensions in order to submit documents and information and
also to pay the charges for an onsite inspection. Finally, they
maintained that Mahmut Nalbant did not object to the adjournment
requests of the other plaintiffs.
- The
applicants maintained their allegations. In particular, they pointed
out that the first hearing was held in 1978, i.e. six years after
Mahmut Nalbant filed an action and that the first onsite inspection
was conducted in 1982. Moreover, they submitted that there was no
fault attributable to Mahmut Nalbant for the prolongation of the
proceedings.
- 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 even though the case was a complex one owing to
the large number of plaintiffs and the nature of the dispute, it
cannot be said that this in itself justified the entire length of the
proceedings.
- As
regards the conduct of Mahmut Nalbant, while the Court notes that his
conduct was not beyond reproach due to his failure to attend few
hearings and onsite inspections, it does not find that Mahmut Nalbant
contributed significantly to the prolongation of the proceedings.
42. As
to the conduct of the domestic authorities, the Court does not
find that there were any excessive delays before the Court of
Cassation when it upheld the judgment of the first-instance court and
dismissed the applicant’s request for a rectification of its
decision. However, the Court cannot overlook the fact that it took
the court of first instance approximately
twenty nine years - fourteen years and six months of which fall
within the Court’s jurisdiction ratione temporis - to
give a judgment on the merits. Admittedly, the Court notes that the
proceedings were prolonged due to a number of adjournments in
particular for onsite inspections either due to adverse weather
conditions or the plaintiffs’ failure to attend them, the death
of some of the plaintiffs and collecting evidence from various
authorities. However, reiterating that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their legal systems in such a way that their courts can meet each of
the requirements of that provision, including the obligation to
decide cases within a reasonable time (see Arvelakis v.
Greece, no. 41354/98, § 26, 12 April 2001), the
Court considers that the domestic court could have applied stricter
measures to speed up the proceedings. Neither the complexity of the
case nor the conduct of the plaintiffs is sufficient to explain the
delay in which the case was processed by the first instance
court. Therefore, the Court considers the delay must be considered to
be attributable to the domestic court’s handling of the
proceedings.
- Finally,
the Court considers that what was at stake for Mahmut Nalbant in
the domestic litigation was of considerable importance to him and to
the applicants.
- 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
- The
applicants claimed 3,620 New Turkish Liras (YTL) (approximately 2,276
euros (EUR)) for pecuniary damage. This sum included representation
fees and expenses incurred both before the domestic courts and before
the Court. They also claimed YTL 15,000 (approximately EUR 9,432)
in respect of non-pecuniary damage.
- The
Government contested the amounts requested by the applicants
considering them excessive and unsubstantiated. In particular, they
disputed the representation fees requested by the applicants due to
the fact that they were represented before the Court by the fourth
applicant.
- The
Court considers it appropriate to deal with the question of pecuniary
damage under costs and expenses below.
- The Court further 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 full amount
claimed by the applicants.
B. Costs and expenses
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 covering costs
under all heads.
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
- 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 according to
Article 44 § 2 of the Convention, the following
amounts to be converted into New Turkish Liras at the rate applicable
at the date of settlement:
(i) EUR 9,432
(nine thousand four hundred and thirty two euros) in respect of
non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer lorenzen
Registrar President
