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SECOND
SECTION
CASE OF GENCER v. TURKEY
(Application
no. 31881/02)
JUDGMENT
STRASBOURG
25
November 2008
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 Gencer 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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31881/02) 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 Bedran Gencer
(“the applicant”), on 22 July 2002.
- The
applicant was represented by Mr H. Cangir, a lawyer practising in
Mardin. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged that, as a result of unfair decisions given by the
domestic courts, he had been deprived of his land which was the main
source of income for his family. He relied on Articles 6, 13, 14 and
18 of the Convention and Article 1 of Protocol No. 1.
- On
15 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Şanlıurfa.
- On
22 November 1984 Law no. 3083 came into force. Article 5 of this law
provided the possibility of leasing State land to farmers who were in
need and who fulfilled certain eligibility criteria (“right
holders”). In particular, Article 24 § 1 of Law no. 3083
provided that those who had been convicted of certain offences were
not entitled to benefit from this law (see paragraph 16 below).
- Following
the promulgation of Law no. 3083, the applicant applied to the
Commission which determined the eligibility of farmers to be right
holders and requested to be provided with land in Ceylanpınar in
the south-east of Turkey.
- On
1 March 1999 the applicant was identified as a right holder and
leased land from the Directorate General for Agricultural Reform
(Tarım Reformu Genel Müdürlüğü)
(“the Directorate General”) for an indefinite period on
payment of a rent. The applicant earned his living by cultivating
this land.
- On
11 May 2000, after conducting a “security investigation”,
the Directorate General annulled the right holder status of the
applicant.
- On
31 May 2000 the applicant brought an action in the Gaziantep
Administrative Court requesting the stay of execution and reversal of
the Directorate General's decision.
- On
8 June 2000 the Gaziantep Administrative Court decided to request the
defendant administration to indicate the reasons which grounded its
decision to annul the right holder status of the applicant. The court
invited the defendant administration to submit their response and
relevant documents within thirty days.
- On
2 August 2000 the Gaziantep Administrative Court dismissed the
applicant's request for a stay of execution of the decision, holding
that necessary conditions were not met.
- On an unspecified date, the Directorate General
refused to submit the information or documents requested by the
Gaziantep Administrative Court. In this respect, the Directorate
General relied on Article 20 § 3 of the Law on Administrative
Procedure which provides that the Prime Minister or other Government
Minister may refrain from submitting information or documents to an
administrative court if the information or documents in question
pertain to the security or vital interests of the State.
- On
7 December 2000 the Gaziantep Administrative Court dismissed the
applicant's case. The court held that the impugned decision of 11 May
2000 and the refusal of the Directorate General to submit the
relevant information and documents had been in accordance with the
domestic legislation. The applicant appealed.
- On
15 April 2002 the Supreme Administrative Court dismissed the
applicant's appeal. This decision was served on the applicant on 5
July 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to Article 24 § 1 of Law no. 3083, persons who are convicted of
the offences defined in the first Section of the second Part of the
Criminal Code and in Articles 312 § 2, 536 and 537 of the
Criminal Code cannot benefit from the distribution of land. Article
24 § 2 of the same Law provides that land shall be taken back,
had the right holder been convicted of one of the offences mentioned
in the first paragraph subsequent to the acquisition of land.
- Article
38 § 3 of the Regulations on the Application of Law no. 3083
provides that, in view of the particularities and security of a
region and subsequent to obtaining the opinion of the security
institutions, the Directorate General is authorised to make
amendments in the right holders list prepared by the Commission.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government submitted that the applicant had failed to exhaust
domestic remedies given that he had not requested the rectification
of the Supreme Administrative Court's decision and that he had not
raised an objection to the Gaziantep Administrative Court's decision
to dismiss his request for a stay of execution.
- As
regards the first part of the Government's objection, the Court
reiterates that it has already examined and rejected similar
objections in previous cases (see, in particular, Dağtekin
and Others v. Turkey, no. 70516/01, § 22,
13 December 2007, and Gök and Others v. Turkey,
nos. 71867/01, 71869/01, 73319/01 and 74858/01, §§ 47-
48, 27 July 2006). It finds no particular circumstances, in the
present application, which would require it to depart from that
conclusion. Consequently, it rejects this part of the Government's
objection.
- As
regards the second limb of the Government's objection, the Court
recalls that, according to Article 35 § 1 of the Convention, it
may only deal with an issue after all domestic remedies have been
exhausted. Nevertheless, the obligation to exhaust domestic remedies
only requires that an applicant make normal use of remedies which are
effective, sufficient and accessible in respect of his or her
Convention grievances.
- In
the instant case, the applicant's complaint related to the alleged
unjust termination of his lease. In this respect, the applicant
brought an action in the administrative courts to obtain the
annulment of the Directorate General's decision dated 11 May 2000
and, meanwhile, sought interim measures to secure a stay of execution
of that decision. However, the applicant's requests were dismissed by
the Gaziantep Administrative Court. In the Court's opinion, the fact
the applicant did not object to the dismissal of his request for a
stay of execution is not material; it is not the case that his claim
was thereby rejected for failure to comply with a procedural
requirement. Having regard to the fact that the applicant's case was
examined by the domestic courts who delivered a final and binding
decision on the matter, the Court concludes that he must be regarded
as having exhausted domestic remedies within the meaning of Article
35 § 1 of the Convention and this part of the Government's
objection cannot be upheld.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
1. As regards the length of the proceedings
- The
applicant alleged that the length of the domestic proceedings
exceeded the reasonable time requirement, in breach of Article 6 §
1 of the Convention.
- The
Court notes that the proceedings in question commenced on 11 May
2000 and ended on 15 April 2002. They thus lasted for approximately
two years at two levels of jurisdiction. Therefore, the Court
concludes that, in the present case, the length of the proceedings
cannot be regarded as exceeding the reasonable time requirement of
Article 6 § 1 of the Convention.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
2. As regards the fairness of the proceedings
- The
applicant complained that the failure of the Directorate General to
submit the documents pertaining to the annulment of his right holder
status to the domestic courts violated his right to a fair hearing
within the meaning of Article 6 §§ 1 and 3 (a) and (b) of
the Convention.
- The
Government contested the applicant's claim. They submitted that,
pursuant to Article 20 § 3 of the Law on Administrative
Procedure, the Prime Minister or other Government Minister may
refrain from submitting information or documents to an administrative
court if the information or documents in question pertain to the
security or vital interests of the State. According to the
Government, in the instant case, the administration had used its
discretionary power under Article 24 of Law no. 3038 and Article 38
of the Regulations of implementation. Thus, having regard in
particular to the security of the region concerned, it had amended
the list of right holders.
- The
Court considers that, in the instant case, it is more appropriate to
deal with the applicant's complaints under Article 6 § 1
globally due to the overlapping nature of the issues and since the
sub-paragraphs of Article 6 § 3, which apply
solely in the criminal sphere, may nonetheless sometimes be regarded
as general elements of the fairness guarantee of the first paragraph
in civil cases.
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 notes that it has examined a similar case in
the past and has concluded that there had been a violation of Article
6 § 1 of the Convention (see Dağtekin and Others,
cited above, §§ 31-35). In that case, it observed that the
national authorities had cancelled the applicants' right to lease
farm land in south-east Turkey following a security investigation,
the results of which were never communicated to the applicants or to
the domestic courts. Furthermore, the result of this security
investigation had important consequences for the applicants since at
no stage of the domestic proceedings were they given an opportunity
to learn the reason as to why their contracts had been annulled. Nor
were they given an effective opportunity to challenge the lawfulness
of the annulment of their right holder status.
- The
Court sees no reason to reach a different conclusion in the instant
case. It notes that, as a result of the impugned security
investigation, the applicant was deprived of his right to cultivate
the farm land in question, which was the main source of income to
sustain his family, and was never given any reasons for the annulment
of his contract. Nor was he given an effective opportunity to
challenge the lawfulness of the annulment of his right holder status,
since the results of the security investigation were not communicated
to the domestic courts either (see paragraphs 13 and 14 above). As a
result, the applicant was deprived of sufficient safeguards against
any arbitrary action on the part of the authorities (see, Dağtekin
and Others, cited above, § 34).
- In
view of the above, the Court concludes that the non-disclosure of the
security investigation report infringed the applicant's right to a
fair hearing within the meaning of Article 6 § 1 of the
Convention. Accordingly, there has been a violation of this
provision.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
- The
applicant further complained, under Article 1 of Protocol No. 1 to
the Convention, that, as a result of the unfair decisions of the
domestic authorities, he had been deprived of his land which he had
leased from the domestic authorities.
- The
Government submitted that the domestic authorities had not acted
arbitrarily in cancelling the applicant's right holder status. They
further argued that the applicant did not have “possessions”
within the meaning of Article 1 of Protocol No. 1.
- The
Court notes that this complaint is linked to that already examined
above and must likewise be declared admissible.
- The
Court further notes that the main Convention question raised in the
instant application was the fairness of the domestic proceedings
pursuant to Article 6 § 1 of the Convention. Having found a
violation of this provision (paragraphs 29-31 above), the Court
considers that there is no need to make a separate ruling on the
applicant's complaint under Article 1 of Protocol No. 1
(see Dağtekin and Others, cited above, § 39).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- On
the basis of these same events, the applicant alleged a further
violation of his rights protected by Articles 13, 14 and 18 of the
Convention.
- The
Government contested these allegations.
- However,
the Court finds nothing in the case file which might disclose any
appearance of a violation of these provisions. It follows that this
part of the application is manifestly-ill founded and must be
rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaints concerning
the fairness of the proceedings and his right to the peaceful
enjoyment of his possessions admissible, and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the fairness of the
proceedings;
- Holds that there is no need to examine
separately the applicant's complaint under Article 1 of Protocol No.
1.
Done in English, and notified in writing on 25 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
