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SECOND
SECTION
CASE OF AKTAR v. TURKEY
(Application
no. 3738/04)
JUDGMENT
STRASBOURG
2 February 2010
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 Aktar 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 Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3738/04) 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 a Turkish national, Mr Naim Aktar
(“the applicant”), on 7 January 2004.
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
21 November 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 1940 and lives in Ankara.
- On
15 January 1977 the applicant bought seven plots of land in the
Bozcaada region of Çanakkale from a private person by way of a
bill of sale.
- On
an unspecified date, a land registry survey was carried out in the
region, as a result of which the plots in question were registered in
the name of the Treasury.
- On
21 August 1991 the applicant raised an objection before the Bozcaada
Cadastral Court against the land registry survey and requested its
annulment.
- The
first hearing was held on 5 November 1991. The applicant did not
attend the hearings held between 16 June 1992 and 17 November 1998.
Moreover, the hearings were adjourned between 16 June 1992 and
22 February 1994 pending the determination of the applicant's
address by the Treasury.
- At
the hearing held on 3 May 1994 the Bozcaada Cadastral Court ordered
an on-site inspection of the plots in question. However, the official
notice for the payment of the inspection fee was only served on the
applicant on 21 July 1998, and the inspection was conducted on
4 September 2000.
- On
29 March 2002 the Bozcaada Cadastral Court partially granted the
applicant's request in relation to three of the plots in question.
The court held that there was no record of ownership in the land
register in respect of these three plots and the applicant had
therefore acquired title to them by way of adverse possession. The
remaining four plots, however, were registered in the Treasury's name
in the land register and could not, therefore, have changed ownership
by way of adverse possession. The bill of sale executed in 1977 to
convey the title of the disputed land was also void for the same
reason. Moreover, even if the Treasury had held no valid title to the
plots in question, the conditions for adverse possession of
unregistered land had not been fulfilled by the applicant in the
instant case. The applicant, therefore, could not claim title to
them. In reaching its decision the Bozcaada Cadastral Court relied on
a number of sources, including on site inspection reports,
statements from witnesses and local experts, title deeds, tax
records, bills of sale, sketch plans and agricultural and technical
expert reports.
- After
holding a hearing on the merits of the case, on 4 February 2003 the
Court of Cassation upheld the judgment of the Bozcaada Cadastral
Court. On 18 June 2003 the Court of Cassation rejected the
applicant's rectification request. This decision was served on the
applicant on 11 July 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As to the length of the proceedings
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention. The Government
contested that argument and maintained that the applicant has not
exhausted domestic remedies, as he failed to raise his complaints
before the domestic courts.
- The
Court notes that it has already examined and rejected this objection
raised by the Government in similar cases (see, among others, Pekinel
v. Turkey, no. 9939/02, §§ 41-43, 18 March 2008). It
finds no particular circumstances in the instant case which would
require it to depart from this jurisprudence. Consequently, the Court
rejects the Government's objection and declares this complaint
admissible.
- As
regards the merits, the Court notes that the proceedings in question
began on 21 August 1991 and ended on 18 June 2003. They thus lasted
approximately eleven years and ten months before two levels of
jurisdiction.
- The
Government maintained that it had essentially been the conduct of the
applicant which had delayed the determination of his claim. They
pointed out that the applicant had not attended the hearings for over
six years, that he had delayed in depositing the expenses required
for the conduct of the on-site inspection and that his lawyer had
requested several additional time-limits to submit certain statements
and documents.
- The
applicant maintained that, according to Article 29 of the Land
Registry Act (Law no. 3402), the Bozcaada Cadastral Court was
required to continue with the proceedings and resolve the issues even
in the absence of the parties. His absence, therefore, could not have
contributed to the length of the proceedings.
- 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).
- As
regards the conduct of the applicant, the Court observes that he did
not attend the hearings for some six years. However, whilst his
absence perhaps causing some delay and inconvenience, the Court notes
that none of the hearings was adjourned on that account and the
cadastral court was under an obligation to carry on with the
proceedings even in the applicant's absence under the domestic law
(see Kalgı v. Turkey, no. 37252/05, § 23,
20 October 2009).
The Court therefore considers that the applicant's conduct could not
justify the entire length of the proceedings.
- 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, for example, Öztunç v. Turkey, no.
74039/01, § 26, 27 March 2007; and Meşrure Sümer v.
Turkey, no. 64725/01, § 49, 8 April 2008). 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 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 of the Convention.
B. As to the fairness of the proceedings
- The
applicant further contended under Article 6 § 1 of the
Convention that the decisions of the domestic courts had been
arbitrary. In his view, the domestic courts had failed to act
impartially in the conduct of the proceedings and the evaluation of
evidence, and had favoured the Treasury's claims in spite of the
evidence in his favour.
- The
Government contested this argument.
- The
Court finds that this complaint essentially concerns the assessment
of evidence and the result of the proceedings before the domestic
courts. However, it is not its task to act as an appeal court of
“fourth instance” by calling into question the outcome of
the domestic proceedings (see, amongst many authorities, Vidal v.
Belgium, 22 April 1992, § 32, Series A no. 235 B).
Moreover, it cannot substitute its view for that of the domestic
courts' findings in regard to the physical characteristics and
ownership of the land in question (see Balcı v. Turkey
(dec.), no. 68545/01, 10 January 2008).
- The
Court observes that the applicant had the benefit of adversarial
proceedings. He was legally represented throughout the proceedings
and was able to argue his claim and call witnesses in support. The
Court of Cassation also held a hearing on the merits of the case and
heard from both parties. Moreover, the factual and legal reasons for
dismissing the case were set out at length both in the judgment of
the first-instance court and the decision of the Court of Cassation.
In these circumstances, the Court considers that the applicant has
failed to lay the basis of an arguable claim that any of the
procedural guarantees of Article 6 § 1 were breached in the
instant case, or that the domestic courts' decisions were otherwise
arbitrary (see, similarly, Pekinel, cited above, §§
51-56).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 300,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 for 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, it considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 5,200 under that head.
- The
applicant did not seek the reimbursement of costs and expenses
relating to the proceedings before the Court. The Court therefore
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 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 5,200 (five thousand
two 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's claim
for just satisfaction.
Done in English, and notified in writing on 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
