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SECOND
SECTION
CASE OF BAKIRCI AND OTHERS v. TURKEY
(Application
no. 41902/04)
JUDGMENT
STRASBOURG
13 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 Bakırcı and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41902/04) 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 four Turkish nationals, Mr Aziz Bakırcı, Ms Zekiye
Çirkinoğlu (Bakırcı), Mr Sabri Bakırcı
and Ms Laetitia Cardier (Sabiha) Bakırcı (“the
applicants”), on 8 September 2004.
- The
applicants were represented by Mr Hakan Bakırcıoğlu
and Mr Erkan Bakırcıoğlu, lawyers practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
16 June 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 CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1951, 1950, 1964 and 1962 respectively. The
first three applicants live in Turkey and the fourth applicant lives
in France.
- The
application concerns a dispute between the applicants and a third
party over ownership of plots of land in the province of Adıyaman.
A. Proceedings before the Kahta Civil Court of First
Instance
- On
21 February 1980 the applicants brought an action before the Kahta
Civil Court of First Instance for prohibition of the third
party's unlawful occupation of their land. On 16 April 1997 the civil
court issued a decision of lack of subject-matter jurisdiction
(görevsizlik kararı)
and sent the case file to the Kahta Cadastral Court.
B. Proceedings before the Kahta Cadastral Court
- In
the meantime, on 8 April 1997 the third party brought a counter
action against the applicants before the Kahta Cadastral Court and
requested registration of the plots of land in his name.
- On
14 April 1997 the General Directorate of
Forests in Turkey (“the
Directorate”) also brought an
action before the same court and requested that one of the plots
owned by one of the applicants should be designated as forest and
registered as property of the Treasury. The Kahta court joined the
cases on 2 September 1997.
- On
6 July 2000 the Kahta Cadastral Court ordered partial
registration of the land in the names of the applicants. The
applicants and the Directorate appealed. On 29 January 2001 the Court
of Cassation quashed the judgment, holding that all the land had to
be registered in the name of the applicants and
remitted the case to the Kahta Cadastral Court.
- On
17 April 2003 the Kahta Cadastral Court abided by the Court of
Cassation's decision and ordered the registration of the land in the
name of the applicants.
- On
15 December 2003 the Court of Cassation upheld the judgment and on 13
July 2004 it dismissed the third party's rectification request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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...”
- The
Government contested that argument.
- The
Court notes that the period to be taken into consideration began on
28 January 1987, when the recognition by Turkey of the right
of individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time (see Şahiner
v. Turkey, no. 29279/95, § 21, ECHR 2001 IX). It
notes that by that date, the case had already been pending for seven
years (see paragraph 6 above). The period in question ended on
13 July 2004. It thus lasted almost seventeen and a half years
and for two levels of jurisdiction.
A. Admissibility
- 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.
B. Merits
- 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 applicants and the relevant authorities and what
was at stake for the applicants 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).
- 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
- The
applicants further complained of the fact that in Turkey there was no
court to which application could be made to complain of the excessive
length of proceedings. They relied on Article 13 of the Convention.
- The
Government did not deal with this complaint in their observations.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). To that end, the Court notes that the absence of such a
remedy in Turkey was examined in earlier cases and held to be in
breach of Article 13 of the Convention (see, inter alia,
Daneshpayeh v. Turkey, no. 21086/04, §§
37-38, 16 July 2009). It sees no reason to reach a different
conclusion in the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicants could have obtained
a ruling upholding their right to have the case heard within a
reasonable time, as set forth in Article 6 § 1 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 3 of the
Convention that the length of the proceedings had caused them stress
and that their reputation in society had been damaged by the case.
They further complained under Article 14 of the Convention on
the basis of the same facts. Finally, the applicants complained under
Article 1 of Protocol No. 1 that at the end of the proceedings they
had managed to obtain only a partial result to stop the unlawful
occupation of their land.
- The
Court has examined these complaints. Having regard to all the
material in its possession, and in so far as these complaints fall
within its competence, the Court finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. 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
applicants jointly claimed 98,000 Turkish liras (TRY) (approximately
46,000 euros (EUR)) in respect of pecuniary and TRY 10,000
(approximately EUR 4,750) in respect of non-pecuniary damage.
- The
Government considered that the applicant's claims were
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, the Court considers that it should award the
applicants jointly the full sum claimed – that is EUR 4,750 –
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed TRY 2,000 (approximately EUR 950) for the
costs and expenses incurred before the Court.
- The
Government contested the claim and considered it to be excessive.
- 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. In the present case, the applicants have not submitted to
the Court any documents in support of their claim and have thus
failed to substantiate that they have actually incurred the costs
claimed. Accordingly, the Court makes no award in respect of costs
and expenses.
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
- Declares the complaints under Articles 6 § 1
and 13 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within
three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 4,750 (four thousand seven hundred and fifty
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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
