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SECOND
SECTION
CASE OF ÜLGEN v. TURKEY
(Application
no. 4530/06)
JUDGMENT
STRASBOURG
6 March
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Ülgen v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4530/06) 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 a
Turkish national, Ms Gülsen Ülgen (“the applicant”),
on 29 December 2005.
- The
applicant was represented by Ms B. Baysal, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
27 August 2009 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born on 2 November 1936.
- On
14 August 1976 the applicant’s mother, N.B. lodged a case with
the Bodrum Cadastral Court seeking annulment of the land survey
conducted in respect of her land: plot no. 423.
- On
12 June 1995 the applicant became involved in the proceedings as the
heir.
- On
7 August 1998 the court granted the request.
- On
25 May 1999 the Court of Cassation quashed the judgment of 7 August
1998.
- On
26 November 1999 a request for rectification of the judgment was
dismissed.
- On
27 March 2000 the first-instance court dismissed the case.
- On
28 November 2000 the Court of Cassation upheld the judgment of 27
March 2000.
- According
to the document submitted by the Government, on 17 October 2005
the rectification request of the parties was rejected.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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 submitted that the Court had no competence to examine the
applicant’s complaints concerning the matters which took place
before the date of 28 January 1987, on which Turkey accepted the
right of individual application, in accordance with the rule of
ratione temporis. They further argued that the proceedings had
lasted ten years as the period to be taken into consideration should
start on 12 June 1995, when the applicant participated in the
proceedings. Finally they contended that the applicant had failed to
exhaust the domestic remedies by not raising her complaints before
the domestic courts and that she did not comply with the six-month
rule.
- The
applicant contested these submissions and alleged that the
proceedings are still pending before the national courts.
- Regarding
the Government’s first assertion, in the light of the Court’s
case law (see Cankoçak v. Turkey, nos. 25182/94
and 26956/95, § 25, 20 February 2001),
the Court observes that it can only consider the period
elapsed after 28 January 1987, the date of deposit of Turkey’s
declaration recognising the right of individual petition under former
Article 25 of the Convention. As regards the second assertion of
the Government, considering that the applicant is the legitimate heir
of her mother N.B., the Court dismisses the Government’s
preliminary objection in this respect.
- As
to the arguments that the applicant had failed to exhaust the
domestic remedies, the Court notes
that it has already examined similar submissions made by the
respondent Government in Daneshpayeh
v. Turkey (no. 21086/04, §§
35-38, 16 July 2009). The Government have not submitted any
arguments which could lead the Court to reach a different conclusion
in the instant case. As to the six-month issue, in the light of the
documents submitted by the Government the final decision was rendered
on 17 October 2005 and bearing in mind that the instant
application was lodged with the Court on 29
December 2005,
the Court finds that the applicant has complied with the six month
rule under Article 35 § 1 of the Convention. Consequently, the
Court rejects the Government’s preliminary objections.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 disagreed with the complaint. They contended that
the impugned proceedings could not be considered to have been
excessively long in view of the complexity of the case. They
concluded therefore that there had been no delay in the proceedings
that may be attributable to the State.
- The
applicant maintained her complaints.
- The
Court notes that the period to be taken into consideration and within
its jurisdiction ratione temporis
began on 28 January 1987, the date of deposit of Turkey’s
declaration recognising the right of individual petition (see
paragraph 16 above). Given that the proceedings ended by the
Court of Cassation’s decision of 17 October
2005, they therefore lasted approximately eighteen years and nine
months before two levels of jurisdiction. (see, mutatis
mutandis, Baggetta v. Italy, 25 June 1987, § 20,
Series A no. 119, and Timotiyevich v. Ukraine (dec.), no.
63158/00, 18 May 2004).
- 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 Daneshpayeh, cited above, §§ 26-29, and
Frydlender v. France [GC], no. 30979/96, §§
42-46, ECHR 2000 VII). 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
23. The applicant
complained that there was no domestic remedy available under the
Turkish law whereby she could challenge the excessive length of
proceedings. She relied on Article 13 of the Convention which reads
as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
- The
Government did not comment on the matter.
- As
this complaint is linked to the above complaint under Article 6, it
must therefore also be declared admissible. The Court has examined
similar cases on previous occasions and has found violations of
Article 13 of the Convention in respect of the lack of an effective
remedy under Turkish law whereby the applicant could have contested
the length of the proceedings at issue (see Daneshpayeh, cited
above, §§ 37 and 51; and Bahçeyaka v. Turkey,
no. 74463/01, §§ 26-30, 13 July 2006; and Tendik
and Others v. Turkey, no. 23188/02, §§ 34-39,
22 December 2005). It finds no reason to depart from that
conclusion in the present case.
There
has accordingly been a breach of Article 13.
III. 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
applicant claimed 17,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim as being
unsubstantiated.
- 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, ruling on an equitable basis, it awards the applicant
EUR 16,800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not state a specific amount for the costs and expenses
she claimed but asked the Court to make an award under this head in
the light of the Turkish Bar Association’s scale of fees.
- The
Government contested the claim.
- 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 are
reasonable as to quantum. In the present case, the Court observes
that the applicant did no more than refer to the Turkish Bar
Association’s scale of fees. She failed to quantify her costs
and expenses and to submit any document in support of her claim. The
Court therefore makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 complaints concerning the excessive
length of the proceedings and lack of effective remedy admissible;
- Holds that there has been a violation of
Articles 6 § 1 and 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 16,800 (sixteen thousand eight hundred euros), to be converted
into Turkish liras at the rate applicable at the date of settlement,
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy
Registrar President
