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THIRD
SECTION
CASE OF ŞENCAN v. TURKEY
(Application
no. 7436/02)
JUDGMENT
STRASBOURG
13
December 2007
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 Şencan v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R.
Türmen,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele, judges,
and Mr S. Naısmıth, Deputy
Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7436/02) 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 three Turkish nationals, Mr İsmail Şencan, Ms Hülya
Şencan and Mr Nejdet Şencan (“the applicants”),
on 12 October 2001.
- The
applicants were represented by Mr F. Yurdakul, a lawyer practising in
Ankara. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
1 June 2006 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1955, 1973 and 1962 respectively and live in
Istanbul.
- The
applicants signed contracts with third persons before the notary
public to acquire de facto possession (zilyedlik) of a
plot of land in Gökçeada.
- On
10 May 1990, 27 August 1991 and 18 May 1992 respectively, the
applicants filed three separate actions with the Gökçeada
Civil Court of General Jurisdiction and requested that their title to
the plot in question be registered in the Land Registry records.
- On
11 September 1991 and 16 March 1992 respectively the first instance
court partially accepted the requests of the first and third
applicants. Subsequently, on 28 April 1992 and 6 November 1992
respectively, the Court of Cassation quashed these judgments, holding
that the Gökçeada Civil Court of General Jurisdiction had
failed to carry out the necessary examination in order to determine
the nature of the plot. The cases were remitted to the first-instance
court.
- On
12 October 1992 and 15 March 1993 the first-instance court once again
partially accepted İsmail and Nejdet Şencan's claims. On 21
June 1993 the Gökçeada Civil Court of General
Jurisdiction also partially accepted the second applicant's claim. In
its judgments, the first-instance court held that the fact that the
land in question appeared as “meadowland” in the tax
registration records did not mean that it could not be the subject of
private ownership.
- On
18 April 1994 the Court of Cassation quashed the three judgments of
the first-instance court and held that the first-instance court
should have taken into account the tax registration records and
accepted the applicants' claims only in respect of the parts of the
plot which were used for agriculture. It further held that
meadowlands could not be subject to private ownership. The cases were
remitted to the Gökçeada Civil Court of General
Jurisdiction.
- On
26 September 1994 all three cases were joined.
- On
13 June 1995 the first-instance court again partially accepted the
applicants' claims. In its judgment, the court stated that the plot
in question was not designated as “meadowland” in the
land registration records and that, therefore, it could be subject to
private ownership.
- On
24 June 1996 the Court of Cassation once again quashed the judgment
of the first-instance court, holding that according to the documents
in the case-file, the plot in question was meadowland and that
therefore the applicants could not have their title registered.
- On
31 July 1996 the Gökçeada Civil Court of General
Jurisdiction issued a decision of non-jurisdiction and sent the case
file to the Gökçeada Cadastre Court.
- On
5 June 1997 the Gökçeada Cadastre Court rendered its
judgment and partially accepted the applicants' claims.
- On
20 May 1998 the Court of Cassation quashed the judgment of the
cadastre court.
- On
16 April 1999 the Gökçeada Cadastre Court abided by the
Court of Cassation's decision, holding that according to the tax
registration records the land in question was meadowland and that it
could not be subject to private ownership. The court further held
that the land should be officially designated as a second degree
conservation area.
- On
21 March 2000 the Court of Cassation upheld the judgment of the
first-instance court.
- On
6 April 2001 the Court of Cassation dismissed the applicants' request
for rectification. This decision was served on the applicants'
representative on 30 April 2001.
THE LAW
I. 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...”
- The
Government contested that argument.
- The
Court notes that in the instant case, there were three sets of
proceedings which were closely linked to each other and which were
subsequently joined. As a result, in calculating the length of the
proceedings, these three proceedings should be considered as a whole.
Accordingly, the period to be taken into consideration began on 10
May 1990 and ended on 6 April 2001 with the decision of the Court of
Cassation. It thus lasted approximately 11 years.
A. Admissibility
- The
Government argued that the applicants have not exhausted the domestic
remedies, as they failed to raise their complaint before the national
courts.
- The
Court reiterates that the obligation to exhaust domestic remedies
only requires that an applicant make normal use of effective and
sufficient remedies, that is those capable of remedying the situation
at issue and affording redress for the breaches alleged.
- It
observes that the Turkish legal system does not provide any remedies
to accelerate the proceedings. Nor does it award any compensation for
delay. The Court accordingly concludes that there was no appropriate
and effective remedy which the applicants should have exercised for
the purposes of Article 35 § 1 of the Convention (see Mete v.
Turkey, no. 39327/02, §§ 18-19, 25 October 2005).
It therefore rejects the Government's preliminary objection.
- The
Court further notes that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other
grounds for declaring it inadmissible have been established.
B. Merits
- 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 (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- The Court further observes that the first-instance
court decisions were quashed on four occasions by the Court of
Cassation. In this connection, it reiterates that since the
remittal of cases for re-examination is usually ordered as a result
of errors committed by lower authorities, the repetition of such
orders within one set of proceedings discloses a deficiency in the
operation of the legal system (mutatis mutandis, Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
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 2,843,375 euros (EUR) in
respect of pecuniary damage and EUR 100,000 each 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.
However, ruling on an equitable basis, it awards the applicants EUR
2,500 each in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 100,000 for the costs and expenses
incurred before the Court and EUR 100,000 for lawyer's fees.
-
The Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicants have not substantiated
that they have actually incurred the costs claimed. Accordingly, it
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
- 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 each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 2,500 (two thousand five hundred euros) in respect of
non-pecuniary damage, to be converted into New Turkish liras at the
rate applicable at the date of 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 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
