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SECOND
SECTION
CASE OF TUR-KO TURİZM YATIRIM VE TİCARET A.Ş.
v. TURKEY
(Application
no. 41421/05)
JUDGMENT
STRASBOURG
6 October
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 Tur-Ko Turizm Yatırım ve Ticaret A.Ş.
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 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41421/05) 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 company, Tur-Ko Turizm
Yatırım ve Ticaret A.Ş. (“the applicant
company”), on 1 November 2005.
- The
applicant company was represented by Mr E.A.Yıldırım
until 16 December 2008 and by Mr D.Türemen after 17 March
2009, lawyers practising in Ankara. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
2 September 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the administrative
proceedings. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 3).
THE FACTS
- On
26 June 1998 the applicant company filed a letter with the General
Directorate of Land Registration (Tapu Kadastro Genel Müdürlüğü)
(hereinafter “the Directorate”), requesting renewal of
cadastral registrations concerning a plot of land which it owned. The
civil courts had previously rejected the applicant company's
correction request concerning the same plot for non-compliance with
procedural requirements. This judgment had become final. It appears
from the case file that the Directorate dismissed, on 22 July 1998,
the applicant company's request with reference to the existing final
judgment regarding the issue.
- On
6 October 1998 the applicant company instituted proceedings before
the Ankara Administrative Court and requested annulment of the
Directorate's rejection. On 10 November 1999 the Ankara
Administrative Court dismissed the applicant company's request on the
ground that cadastral corrections had become final after the civil
proceedings. On 22 October 2002 the Council of State quashed the
judgment. The Directorate applied for rectification of the Council of
State's judgment. On 29 April 2005 the Council of State upheld the
Ankara Administrative Court's judgment, holding that the judgment had
been in conformity with the law and procedure. The decision was
served on the applicant company on 5 July 2005.
THE LAW
- The
applicant company complained under Article 6 §
1 of the Convention that the length of proceedings before the
administrative courts had exceeded the reasonable time requirement.
The Government contested this argument.
- The
period to be taken into consideration began on 6 October 1998 when
the applicant company instituted the administrative proceedings and
ended on 29 April 2005 when the Council of State delivered its final
judgment. It has thus lasted some 6 years and 6 months for two levels
of jurisdiction.
- The
Court notes that 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.
9. The Court reiterates that the
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case (see, among many other
authorities, Pélissier and
Sassi v. France [GC], no. 25444/94,
§ 67, ECHR 1999 II). Having regard to the total length of
the proceedings before the trial court in the present case, the Court
is not convinced that these proceedings were conducted within a
reasonable time. In the light of the foregoing, the Court holds that
there has been a violation of Article 6 § 1 of the Convention.
- As for the question of just satisfaction award under
Article 41 of the Convention, the applicant company claimed a total
of 8,893,368 euros (EUR) in respect of pecuniary damage and EUR
50,000 for non-pecuniary damage. It further claimed EUR 450,000 for
its costs and expenses. 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, in respect of
non-pecuniary damage, it makes an award of EUR 3,300. As to
costs and expenses, the Court recalls its case-law that 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, the
Court observes that the applicant company did not produce any
document in support of its claims. Accordingly, the Court makes no
award under this head.
- 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 the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 3,300 (three thousand three hundred 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
company's claim for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
