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SECOND
SECTION
CASE OF TARIMCI v. TURKEY
(Application
no. 30001/03)
JUDGMENT
STRASBOURG
14
October 2008
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 Tarımcı v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30001/03) 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 Tunç Tarımcı
(“the applicant”), on 18 August 2003.
- The
applicant was represented by Mr H.K. Elban and Ms Serpil Yalçın,
lawyers practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
11 December 2006 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Antalya.
- The
applicant owns a flat in Antalya. Based on a construction permit
issued by the Antalya Municipality on 14 February 1991, construction
works were commenced on neighbouring land to build an apartment
block. The limitations concerning the height of the building were not
respected and, as a result, the sea view from the applicant's flat,
which is situated on the sixth floor, was blocked by the new
building.
- On
an unspecified date, the applicant initiated administrative
proceedings against the Antalya Municipality for the annulment of the
construction permit. He maintained that the permit was in breach of
city planning regulations. On 27 June 1995 the Antalya Administrative
Court found in the applicant's favour and annulled the construction
permit. On 13 March 1996 the Supreme Administrative Court upheld
the decision of the Antalya Administrative Court.
- The
applicant asked the Antalya Municipality to enforce the decision of
the Antalya Administrative Court, but his request was rejected.
- On
18 October 1998 the applicant initiated compensation proceedings
before the Antalya Administrative Court on account of the
Municipality's failure to implement the court order of 13 March 1996.
He requested both pecuniary and non-pecuniary compensation, stating
that the non-enforcement of the final court decision which had
annulled the construction permit had diminished his flat's value.
- On
19 November 1998 the Antalya Administrative Court partially upheld
the applicant's claim, awarding him pecuniary compensation, but
refusing non-pecuniary damages.
- On
26 April 2000 the Supreme Administrative Court upheld the Antalya
Administrative Court's decision in respect of pecuniary damage.
However, finding that the applicant was also entitled to
non-pecuniary compensation, it quashed the judgment in this respect.
Subsequent to this decision, the Municipality paid the pecuniary
compensation to the applicant.
- On
1 November 2000 the Antalya Administrative Court awarded
250,000,000 Turkish liras (TRL) to the applicant in respect of
non-pecuniary damage.
- On
16 April 2002, considering the amount of non-pecuniary compensation
insufficient, the Supreme Administrative Court quashed the judgment
of the Antalya Administrative Court once again.
- On
19 December 2002 the Antalya Administrative Court insisted on
maintaining its judgment. The applicant appealed.
- On
16 June 2005 the Supreme Administrative Court quashed the judgment of
the Antalya Administrative Court of 19 December 2002.
- On
29 December 2005 the Antalya Administrative Court adhered to the
decision of the Supreme Administrative Court and awarded the
applicant TRL 1,000,000,000 in respect of non-pecuniary
compensation with statutory interest running from 18 October 1996.
- On
27 June 2006 the Supreme Administrative Court rejected the appeal of
the Municipality. The Municipality paid the due amount to the
applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
1. The scope of the application
- The
applicant first alleged that his right to a fair hearing had been
breached on account of the failure of the national authorities to
enforce the judgment of the Antalya Administrative Court. However, he
subsequently withdrew this complaint after the exchange of written
observations between the parties. Accordingly, the Court is not
required to examine the matter further.
- The
case is thus limited to the applicant's second complaint that the
proceedings had exceeded the reasonable time requirement of Article 6
§ 1 of the Convention, which provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ...hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested this claim.
2. Applicability of Article 6
- Referring
to the Court's case-law in the Hüseyin Cahit Ünver v.
Turkey case (dec. no. 36209/97, 26 September 2000), the
Government submitted that Article 6 of the Convention was not
applicable to the instant case.
- The
Court recalls that in the Ünver case, it held that
Article 6 was not applicable to the proceedings in dispute, as the
applicant in that case had never argued before the domestic courts
that the value of his house had been diminished. His sole concern was
to preserve his view of the sea and the natural beauty of the area.
However, in the present case the applicant specifically argued before
the Antalya Administrative Court and the Supreme Administrative Court
that the value of his house had been diminished because of the
neighbouring building which had been built pursuant to an unlawful
construction permit. Furthermore, the Court notes that the applicant
was awarded pecuniary compensation by the domestic courts for his
loss. Consequently, the Court concludes that the outcome of the
proceedings was decisive for the applicant's private and/or pecuniary
rights.
- The
Court therefore dismisses the Government's preliminary objection in
this respect and finds that Article 6 is applicable to the
proceedings in issue.
3. First set of proceedings
- The
Government stated that there were two separate sets of proceedings in
the present case. The first set of proceedings concerned the
annulment of the neighbour's building permit and successfully ended
with the Supreme Administrative Court's decision of 13 March 1996.
However, the application was not lodged with the Court until 18
August 2003. This aspect of the complaint should therefore be
dismissed for non-compliance with the six month time-limit prescribed
by Article 35 § 1 of the Convention.
- The
Court concurs with this analysis and therefore rejects this
part of the application pursuant to Article 35 §§ 1 and 4
of the Convention.
4. Second set of proceedings
-
The Court observes that the second set of proceedings, concerning the
non-enforcement of the aforementioned 1996 judgment, commenced on
18 October 1998 and ended on 27 June 2006 with the another
decision of the Supreme Administrative Court. During this period both
the first-instance court and the Court of Cassation delivered four
decisions each. It thus lasted more than seven years and eight months
for two levels of jurisdiction.
- The
Court notes that this aspect of the complaint 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.
- 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 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).
- In
the present case, the domestic courts delivered eight decisions in
seven years and eight months. However, the Court cannot overlook the
fact that lengthy periods elapsed before the Supreme Administrative
Court (namely between 19 November 1998 and 26 April 2000; 1 November
2000 and 16 April 2002, and 19 December 2002 and 16 June 2005). The
Government have not offered any explanation for this state of
affairs. Failing which, and in the absence of any indication that the
applicant contributed to the delays, this lack of diligence is solely
attributable to the domestic courts.
- 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
applicant claimed 27,964 new Turkish liras (TRY), equivalent to
15,000 euros (EUR), in respect of pecuniary damage and TRY 5,000,
equivalent to EUR 2,700, 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, as regards non-pecuniary damage, taking into account the
circumstances of the case and having regard to its case-law, the
Court awards the full amount claimed by the applicant, namely EUR
2,700.
B. Costs and expenses
- The
applicant also claimed TRY 9,000, equivalent to EUR 4,800, in respect
of legal fees and TRY 130, equivalent to EUR 70, in respect of costs
and expenses. The applicant submitted a legal fee agreement, and
stated that his lawyer had spent 36 hours preparing his application
to the Court.
- The
Government contested this 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,000 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
1. Declares the complaint in respect of the length of the
second set of administrative proceedings admissible, and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
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
2,700 (two thousand seven hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
