KUMBARACIBASI v. TURKEY - 23453/06 (Judgment : Violation of Right to a fair trial (Enforcement proceedings Access to court)) [2017] ECHR 1121 (12 December 2017)

In the case of Kumbaracıbaşı v. Turkey,

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

          Julia Laffranque, President,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 21 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 23453/06) 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, Mr Onur Çetin Kumbaracıbaşı (“the applicant”), on 2 June 2006.

2. The applicant was represented by Mr E.A. Yıldırım, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. On 25 September 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1939 and lives in Ankara.

5. The applicant is the owner of an apartment in Ankara. On an unspecified date, the applicant brought a case before the Ankara Administrative Court against the Çankaya Municipality and the Ankara Metropolitan Municipality for the annulment of the construction permit pertaining to a neighboring building which was being built opposite his apartment.

6. On 14 December 1999 the Ankara Administrative Court accepted the applicant’s request and revoked the construction permit based on a breach of height restrictions. According to this judgment, the building in question was constructed 1.48 meters higher than the norm that was laid down in the zoning plan in force.

7. On 17 February 2000 the Çankaya municipal executive committee (belediye encümeni) ordered the demolition of the illegally constructed part of the building in order to comply with the administrative court’s judgment. However, it did not implement the said decision.

8. On 19 November 2001 the Supreme Administrative Court upheld the administrative court’s judgment.

9. In the meantime, on 3 August 2001 the Çankaya municipal council (belediye meclisi) amended the zoning plan and sent its decision to the Ankara Metropolitan Municipality for approval.

10. On 26 October 2001 the Ankara Metropolitan Municipality withheld its approval, holding that the zoning plan had been amended with the aim of legalizing the previously revoked building permit and thereby avoiding the demolition of the illegal construction.

11. On 5 December 2001 the Çankaya municipal council insisted in its previous decision and the amended zoning plan thus came into force.

12. Subsequently on 31 December 2001 the applicant brought a case before the Ankara Administrative Court for the annulment of the Çankaya municipal council’s decision of 5 December 2001.

13. On 31 March 2003 the Ankara Administrative Court annulled the said decision for, inter alia, encouraging unlicensed construction practices.

14. On 21 February 2005 the Supreme Administrative Court upheld the administrative court’s decision and on 18 October 2005 it rejected the Çankaya Municipality’s rectification request. This decision was served on the applicant on 13 December 2005.

II. RELEVANT DOMESTIC LAW

15. For a summary of the relevant domestic law, see Okyay and others v. Turkey, no. 36220/97, §§ 57-59, 12 July 2005.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16. The applicant complained under Article 6 of the Convention that the local authorities had not complied with the judgment of the administrative court revoking the construction permit of the neighbouring building.

17. The Government contested that argument.

A. Admissibility

18. The Government submitted that this part of the application should be rejected for failure to exhaust domestic remedies, pursuant to Article 35 § 1 of the Convention. They argued that the applicant could have sought compensation under Article 28 § 3 of the Code on Administrative Procedure.

19. The Court recalls that the obligation to exhaust domestic remedies is limited to making use of remedies which can provide effective and sufficient redress (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 71).

20. The Court further considers that, in the circumstances of the present case, the award of compensation would not be a sufficient redress for the applicant’s Convention grievance since his complaint pertains to the continued non-implementation of a binding final judicial decision to implement a demolishing order of a part of the neighbouring building that had been constructed illegally (see Okyay and others v. Turkey (dec.), no. 36220/97, 17 January 2002; Lemke v. Turkey, 17381/02, 5 June 2007; Liman-İş Sendikası v. Turkey, no. 29608/05 and 2 others, 12 October 2010).

21. In light of the above, the Court dismisses the Government’s preliminary objection and notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

22. The Court reiterates its case-law to the effect that the right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see, inter alia, Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III).

23. In the present case, the Court observes that on 14 December 1999 the Ankara Administrative Court revoked the construction permit of the applicant’s neighbouring building on account of a breach of height restrictions. Following appeal proceedings, this decision became final on 19 November 2001 and the judgment has not been enforced.

24. In the light of the foregoing, the Court considers that the national authorities failed to comply in practice with the judgment rendered by the Ankara Administrative Court thus depriving Article 6 § 1 of any useful effect.

25. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

26. Relying on Article 13 of the Convention, the applicant complained that he had no effective remedy under domestic law whereby he could challenge the non-enforcement of a court decision given in his favour.

27. The Court notes that this complaint is linked to that examined above and must therefore be declared admissible. However, having regard to the violation found under Article 6 § 1 of the Convention, the Court does not consider it necessary to examine separately the applicant’s allegation under this head.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

28. The applicant complained under Article 6 of the Convention about the length of the proceedings before the administrative courts. He further complained under Article 1 of Protocol No. 1 to the Convention about the considerable loss in the market value of his apartment, caused by the inactivity of the administration to demolish the illegal part of the neighboring building.

29. In the light of all the material in its possession, the Court finds that these submissions by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

30. The applicant claimed 200,000 euros (EUR) in respect of pecuniary and EUR 30,000 non-pecuniary damage.

31. The Government contested the claims.

32. As regard the pecuniary damage, the Court rejects the applicant’s claim since it observes that this claim is related to the complaint raised under Article 1 of Protocol No.1 to the Convention that was found inadmissible (see paragraph 29 above). The Court further considers that the most appropriate form of redress would consist in removing the obstacles to enforcement by taking all necessary measures to enforce the judgment of 19 November 2001 (see Ellis v.Turkey, [Committee], no. 1065/06, § 38, 4 April 2017).

33. As regards non-pecuniary damage, the Court considers that the applicant must have suffered distress and frustration resulting from the lengthy period of non-enforcement of domestic court decision in his favor, which according to its well-established case-law, cannot be compensated for solely by the finding of a violation of the Convention. Ruling on an equitable basis, as required by Article 41 of the Convention, it decides to award EUR 6,000 under this head.

B. Costs and expenses

34. The applicant also claimed 3,000 Turkish liras (TRY) (approximately EUR 740) for the costs and expenses.

35. The Government contested the claim.

36. 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 were reasonable as to quantum. Regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.

C. Default interest

37. 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,

1. Declares the applicant’s complaints under Article 6 § 1 of the Convention, concerning the non-enforcement of the administrative court’s judgment, and Article 13 of the Convention, regarding the lack of effective remedies admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention for the authorities’ failure to enforce the administrative court’s judgment;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(a) the respondent State shall, in accordance with Article 44 § 2 of the Convention, remove the obstacles to the enforcement of the impugned judgment, by taking all necessary measures to ensure that the writ of execution can be issued;

(b) that the respondent State is to pay the applicant, in accordance with Article 44 § 2 of the Convention, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(c) 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KUMBARACIBASI v. TURKEY - 23453/06 (Judgment : Violation of Right to a fair trial (Enforcement proceedings Access to court)) [2017] ECHR 1121 (12 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1121.html Cite as: CE:ECHR:2017:1212JUD002345306, ECLI:CE:ECHR:2017:1212JUD002345306, [2017] ECHR 1121