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SECOND
SECTION
CASE OF HASAN GENÇ v. TURKEY
(Application
no. 26576/02)
JUDGMENT
STRASBOURG
31
July 2007
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 Hasan Genç v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs F.
Elens-passos, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26576/02) 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 Hasan Genç
(“the applicant”), on 23 March 2002.
- The
applicant was represented by Mr H. Işık, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
3 October 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Istanbul.
- On
22 March 1994 the applicant was granted a lease by the Istanbul
Municipality to run a car park on a plot of land by the coast in the
Kadıköy district of Istanbul.
- On
14 and 27 July 1999 and 24 March 2000 the National Estate Directorate
attached to the Istanbul Revenue Office issued three orders
requesting the applicant to pay compensation for occupying the car
park between 1 March 1998 and 31 December 1999.
- On
11 August 1999, 29 September 1999 and 14 April 2000 respectively the
applicant filed three separate cases with the Istanbul Administrative
Court against the Istanbul Revenue Office, requesting that the orders
be annulled. The first case concerned the period between 1 March and
31 December 1998, the second case concerned the period between
1 January and 1 August 1999 and the third case concerned the
period between 1 August and 31 December 1999.
As regards the first two proceedings
- On
25 May 2000 the Istanbul Administrative Court annulled the orders
dated 14 July 1999 and 27 July 1999. The administrative authority
appealed. Subsequently on 17 December 2004 the Supreme
Administrative Court quashed the respective judgments of the Istanbul
Administrative Court.
- On
24 June 2005 the Istanbul Administrative Court followed the reasoning
set out in the Supreme Administrative Court's decision and dismissed
the cases. The applicant appealed.
- On
13 March 2006 the Supreme Administrative Court quashed the respective
judgments of the Istanbul Administrative Court once again.
- On
13 November 2006 the Istanbul Administrative Court decided to annul
the respective compensation orders.
- According
to the information in the case file based on the latest submissions
by the parties, both actions are apparently still pending before the
Supreme Administrative Court.
As regards the third set of proceedings
- On
23 February 2001 the Istanbul Administrative Court annulled the
compensation order dated 24 March 2000. The administrative authority
appealed and subsequently on 4 February 2005 the Supreme
Administrative Court quashed the judgment of the Istanbul
Administrative Court.
- On
18 April 2006 the Istanbul Administrative Court followed the
reasoning set out in the Supreme Administrative Court's decision and
dismissed the case. According to the information in the case file,
this action is still pending before the Supreme Administrative Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
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 allegation.
- The
Court notes that in the instant case there are three sets of
proceedings which are closely linked to each other. It observes that
the first set of proceedings commenced on 11 August 1999 and,
according to the information in the case file, all three actions are
still pending before the Supreme Administrative Court on the date of
adoption of the present judgment. The Court considers that, in the
circumstances of the present case, while calculating the length of
the proceedings, these three proceedings should be considered as a
whole.
- In
view of the above, the Court finds that the period to be taken into
consideration has lasted seven years and eleven months for three sets
of proceedings, involving two levels of jurisdiction who have
examined the cases more than once.
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. This
remaining part of the application 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, 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
application (see Frydlender, cited above).
- In
the present case, it is observed that the actions before the
administrative courts were not complex. They concerned the annulment
of three compensation orders. Furthermore, the Court cannot overlook
the fact that a lengthy period – some four to five years -
elapsed while the cases were pending before the Supreme
Administrative Court (see paragraphs 8 and 13). 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
Ahmet Kılıç v. Turkey, no. 38473/02, §§
32 34, 25 July 2006; Nuri Özkan v. Turkey, no.
50733/99, § 21, 9 November 2004; Yengin v. Turkey,
no. 42091/02, §§ 34-35, 20 February 2007). It
further observes that the Government have not put forward any fact or
convincing 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 administrative
proceedings in the instant case was excessive and failed to meet the
“reasonable time” requirement of Article 6 § 1.
There
has accordingly been a breach of this provision.
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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- Ruling
on an equitable basis, the Court awards the applicant EUR 1,800
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 43,721.30 New Turkish liras (YTL)
-approximately EUR 24,448 - for the costs and expenses incurred
before the domestic courts and the Strasbourg Court.
- The
Government contested the claim.
- Making
its own estimate based on the information available, the Court
considers it equitable to award the applicant EUR 1,000 for the costs
and expenses incurred before the Court.
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 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, 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 and free of any taxes or charges that may
be payable:
(i) EUR
1,800 (one thousand eight hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) 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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-passos F. Tulkens
Deputy Registrar President
