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SECOND
SECTION
CASE OF SÜRGİT v. TURKEY
(Application
no. 27597/06)
JUDGMENT
STRASBOURG
22
September 2009
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 Sürgit v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27597/06) 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 Ahmet
Sürgit (“the applicant”), on 19 June 2006.
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
10 September 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- The
applicant was born in 1964 and lives in İzmir.
- In
1998 the applicant and his wife bought a flat. In 1999 the
applicant’s wife initiated divorce proceedings against the
applicant and in 2000 the divorce was pronounced.
- In
the meantime, on 24 November 1999, the applicant brought an action
before the İzmir Civil Court of General Jurisdiction, asking for
compensation in an amount equal to half the value of the flat he and
his former wife had bought in 1998. On 17 September 2003 the court
dismissed the case as it found that it did not have jurisdiction
ratione materiae, and sent the file to the İzmir Family
Court. However, on 21 October 2004 the İzmir Family Court
dismissed the case as it also found that it lacked jurisdiction
ratione materiae, and sent the file back to the İzmir
Civil Court of General Jurisdiction.
- Finally,
on 16 June 2005, having regard to the statements of both parties’
witnesses and an expert report to assess the contribution made by the
parties to the flat, and in view of the facts of the previous divorce
action, the İzmir Civil Court of General Jurisdiction dismissed
the case. It held that the applicant and his former wife had been
living in separate houses when the flat in question was bought.
Moreover, the applicant was unemployed and unable to provide even a
basic level of financial support for his wife. It was concluded that,
given his financial situation, the applicant could not have
contributed enough to the purchase of the flat in question to be
entitled to claim a share in it. The court further noted that, at the
time of purchase, the legal matrimonial regime was the system of
separation of property and the title deed of the flat was registered
in the wife’s name.
- On
29 December 2005 and 14 April 2006 respectively, the Court of
Cassation rejected the applicant’s appeal and rectification
requests.
THE LAW
- The
applicant complained that he did not have a fair hearing and that the
length of the proceedings had been incompatible with the “reasonable
time” requirement of Article 6 § 1 of the Convention.
- The
Government contested this argument. They contended that the
applicant’s complaint regarding the length of the proceedings
should be declared inadmissible for non-exhaustion of domestic
remedies, as he had failed to raise his
complaint before the national courts. The Court reiterates that
it has already examined and rejected the Government’s
preliminary objections in cases similar to the present application
(see, Karakullukçu v. Turkey, no. 49275/99,
§§ 27-28, 22 November 2005; Nalbant v. Turkey,
no. 61914/00, § 31, 10 August 2006).
It finds no particular circumstances in the instant case which would
require it to depart from this jurisprudence. Consequently, it
rejects the Government’s preliminary objection.
- As to the applicant’s
complaint concerning the fairness of the proceedings, the Court
observes that the national courts’ decisions were given on the
basis of domestic law and the particular circumstances of the case.
The Court finds no element which might lead it to conclude that the
domestic courts acted in an arbitrary or unreasonable manner in
establishing the facts or interpreting the domestic law. There is
therefore no appearance of a violation of Article 6 § 1 in this
respect. The Court finds that this complaint should be rejected
as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
- As to the length of the proceedings, the Court notes
that this 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.
- In the present case, the period
to be taken into consideration began on 24 November 1999 and ended on
14 April 2006. It thus lasted six years and four months at two levels
of jurisdiction.
- The
Government submitted that the length of the proceedings had not
exceeded a reasonable time. They argued that the conduct of the
applicant’s lawyer had contributed to the length of the
proceedings since he had requested several extensions and failed to
attend six hearings. 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 Court observes that the Izmir Civil Court of
General Jurisdiction took three years and nine months to declare that
it lacked jurisdiction. Subsequently, the Izmir Family Court, to
which the case file was sent, decided after thirteen months that it
also lacked jurisdiction to examine the case. As a result, the first
decision on the merits of the case was only rendered after five and a
half years. In the Court’s opinion, the absence of the
applicant’s lawyer at certain hearings cannot justify the
prolongation of the proceedings. Although there were no substantial
delays on appeal, the Court takes the view that five years and six
months before one instance is too long. Having regard to its case-law
on the subject, the Court considers that in the instant case the
total length of the proceedings (in particular the period before the
first-instance court) was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1.
- Concerning just satisfaction,
the applicant claimed 10,000 Turkish liras (TRL) (approximately 4,600
euros (EUR)) in respect of pecuniary damage and TRL 10,000 in respect
of non-pecuniary damage. The Government contested the claims. The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have suffered
some non-pecuniary damage and therefore, taking into account the
circumstances of the present case, and ruling on a equitable basis,
it awards him EUR 3,000 in respect of non-pecuniary damage.
- The applicant further requested
TRL 10,000 for the costs and expenses before the domestic courts and
the Court, without substantiating his 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 applicant has not established that he
actually incurred the costs claimed. Accordingly, the Court makes no
award under this head.
- The
Court further finds 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 complaint concerning the excessive
length of the 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, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Turkish liras
at the rate applicable at the date of settlement;
(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 1 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
