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SECOND
SECTION
CASE OF PEKİNEL v. TURKEY
(Application
no. 9939/02)
JUDGMENT
STRASBOURG
18 March
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 Pekinel v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
judges,
Rauf
Versan, ad
hoc judge,
and Sally Dollé, Section
Registrar,
Having
deliberated in private on 26 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9939/02) 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 Ms Süher Pekinel, Ms Güher Pekinel and Mr Mehmet
Murat Pekinel (“the applicants”), on 5 October 2001. The
first and second applicants are Turkish nationals and the third
applicant is a stateless person of Turkish origin.
- The
applicants were represented by Mr Uğural, a lawyer practising in
Strasbourg, and Mr Soybay and Mr Erkut, lawyers practising in
Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
28 June 2004 the Court
decided to give notice of the application 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.
- On
20 November 2007 Mr Türmen, the judge elected in respect of
Turkey, withdrew from sitting in the case (Rule 28). The Government
accordingly appointed Mr Rauf Versan to sit as an ad hoc
judge, in his place (Article 27 § 2 of the Convention and Rule
29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first and second applicants were born in 1951 and the third applicant
was born in 1948. They live in Turkey.
- The
applicants are the heirs of Mr Salih Ekrem Pekinel and Mr Abdurrahim
Pekinel, who were their father and uncle respectively (“ancestors”).
The applicants' ancestors (muris) were allegedly the owners of
2,258,000 square metres of land, along with six other persons
(“co owners”), in the Maltepe village of the Menemen
district in the Izmir province.
1. The Land Registry Commission's land survey of 13
October 1961 and the objection of the Treasury
- On
13 October 1961 the Land Registry Commission (Tapulama Komisyonu)
attached to the General Directorate of Land Registration (Tapu ve
Kadastro Genel Müdürlüğü) conducted a
land registry survey (tapulama tespiti) and registered a plot
of land (“plot no. 726”) in the Maltepe village as being
owned by eight people - the applicants' ancestors and the other
co-owners.
- In
1964 the Treasury challenged this land registry survey. It claimed
that the land in question had been used as meadowland (mera)
and that therefore it had not been correctly surveyed by the
Commission.
- On
22 May 1974 the land register was amended by the Land Registry
Commission and the Treasury was registered as the owner of plot no.
726.
2. The Menemen Cadastre Court's judgment of 7 July 1986
- On
29 July 1974 six persons (“the plaintiffs”) filed an
action with the Menemen Cadastre Court, requesting that the decision
of the Land Registry Commission be set aside. They claimed that the
land in question had been registered with their title and that it
belonged neither to the Treasury nor to the applicants' ancestors and
the co-owners.
- On
an unspecified date the applicants' ancestors filed a counter-claim
that they held a share in plot no. 726. They requested that the
former records at the land registry, which proved their right of
ownership in respect of plot no. 726, be confirmed. They based their
arguments on the land registry records of December 1884, which
indicated that the land in question was owned by their father, Salih
Paşa.
- On
14 April 1979 Mr Abdurrahim Pekinel and,
on 28 November 1982, Mr Salih Ekrem
Pekinel died. The applicants were designated as their heirs.
- On
7 July 1986 the Menemen Cadastre Court rendered its judgment. It held
as follows:
“The land registry record of 1884 concerning plot
no. 726 in Maltepe village was modified. ...
The same record was also modified regarding plot no. 1
in Seyrekköy village. The record concerning this plot became
final since there was no objection. ...
According to the initial records, the size of the land
was 1,103,163 square metres, whereas the size of plot no. 1 in
Seyrekköy was found to be 3,619,600 square metres. It was
established that the land's borders were unclear in the records and
thus open to enlargement. According to the case-law of the Court of
Cassation and Article 42 of the Law on Cadastre, if the borders
mentioned on records were uncertain and suitable for enlargement, the
total amount indicated in these records should be taken into
consideration.
...
Following the finalisation of the land registry record
concerning plot no. 1 in Seyrekköy, both the plaintiffs and the
plaintiffs in the counter-claim acquired land from this plot.”
- The
Menemen Cadastre Court further found that the land in question was
public property because it had been used as meadowland. Thus it could
not be the subject of a determination by the Land Registry
Commission. The court concluded that plot no. 726 in the Maltepe
village belonged neither to the plaintiffs nor to the applicants'
ancestors and the co owners, but to the Treasury.
3. The Court of Cassation's decision of 17 November
1988
- On 17 November 1988 the Court of Cassation quashed the
judgment of the Menemen Cadastre Court and remitted the case for
reconsideration. The Court of Cassation observed that the Land
Registry Commission had established that plot no. 726, which covered
2,258,000 square metres of land, had belonged to some of the
plaintiffs. It noted that the Treasury had objected to the
registration made by the Commission, claiming that the amount of land
shown in the land registry exceeded the amount to which the
plaintiffs were entitled. It pointed out that the plaintiffs had
challenged the registration with reference to the records kept at the
land registry and that the first-instance court had dismissed the
case, qualifying the land as a “meadow”.
- The
Court of Cassation reasoned that the investigation carried out by the
first instance court was not sufficient to render a judgment.
The plaintiffs based their claims on the records kept at the land
registry. These records were included in the case file but did not
indicate the land's exact location. Furthermore, the documents
concerning the neighbouring plots were not used and the nature of the
property was not properly examined.
- The
Court of Cassation opined that, in order to reach a well-founded
conclusion, the documents concerning the neighbouring plots should be
included in the file, an on-site examination should be carried out,
and local persons who were old and who knew the area should be heard.
It considered in particular that issues concerning the nature and the
ownership of the land and the identities of the persons who used the
land should be determined by way of testimony. In addition, an expert
report should be obtained from an agricultural engineer.
- The
Court of Cassation concluded that taking a decision without making a
sufficient examination was incorrect, and that the reasoning as to
the necessity of the determination by the Land Registry Commission
was not accurate.
4. The Menemen Cadastre Court's judgment of 13 May 1992
- Following
the decision of the Court of Cassation, the case was remitted to the
Menemen Cadastre Court.
- The
plaintiffs and the plaintiffs in the counter-claim, including the
applicants, alleged that plot no. 726 had belonged to Salih Paşa
and had been inherited by his heirs. Therefore, neither the Treasury
nor other persons had a claim to it. In this connection, they stated
that plot no. 1 in Seyrekköy and plot no. 726 in Maltepe had
belonged to Salih Paşa and Hacı Velioğlu and that,
following an agreement between their heirs, the land had been shared.
They alleged that plot no. 1 in Seyrekköy had been given to the
heirs of Hacı Velioğlu, whereas plot no. 726 had
been reserved for the heirs of Salih Paşa. The applicants
averred that they had not acquired any property from plot no. 1 in
Seyrekköy.
- The
representative of the Treasury claimed that all the plaintiffs had
received more land than that to which they were entitled after the
Land Registry Commission's decision. He maintained that the
plaintiffs had acquired property from plot no. 1 in Seyrekköy.
He further claimed that the land in question was meadowland, which
could not be qualified as private property.
- The
Menemen Cadastre Court carried out an on-site inspection and heard
evidence from three local experts and an agricultural engineer.
- On
13 May 1992 the Menemen Cadastre Court, taking into account the
findings of the local experts and the reports of the agricultural
engineer, decided that plot no. 726 in Maltepe belonged to the
persons specified by the Land Registry Commission in 1961. It
therefore ordered the registration of these persons or their heirs,
including the applicants, as the owners of plot no. 726 in
the Maltepe village at the land registry.
5. The Court of Cassation's decision of 21 April 1993
- On 21 April 1993 the Court of Cassation quashed the
judgment of 13 May 1992 and sent the case file to the Menemen
Cadastre Court.
- The Court of Cassation reasoned that the
first-instance court had not conducted an adequate
investigation, the guidelines of which had been indicated in its
decision of 17 November 1988. It pointed out that the size
of the land in question was 1000 dönüm according to
the land registry records of 1884, whereas the land registry records
of 1890 had indicated that the size of the land was 1200 dönüm.
The court observed in this connection that the first instance
court had failed to explain the reason for the increase in the size
of the land. Moreover, the first-instance court had failed to include
in the case file the land registry record of 1875 for the land in
question, the documents concerning the neighbouring plots of the land
and the military maps of the area.
- The
Court of Cassation also noted that the land registry record of 1884
referred to some places as being the borders of the land in question,
(“sıra melengeç, Yorgaki oğlu, İsmet
hanım, harita, Kara istirati, çataka tarlaları and
kulak istifanı”), which was not fully comprehensible.
Therefore, it should be determined whether the borders of the plot of
land were correctly cited in the records at the land registry. The
court stated that a map of the disputed plot of land and the
neighbouring plots of land should be drawn up, and that the military
map of the area, the statements of the experts and the local people
should be taken into account when making that map.
6. The Menemen Cadastre Court's judgment of 11 November
1998
- Upon receipt of the case file, the Menemen Cadastre
Court re-examined the case.
- It requested the General Directorate of Land
Registration to submit a copy of the records of 1875 kept at the land
registry office in respect of plot no. 726.
- On 21 July 1994 the General Directorate informed the
court that the record in question did not pertain to any plot of land
in Seyrekköy.
- On 1 December 1994 the Directorate sent the document
in question and informed the Menemen Court that the reason for the
increase in size of the property could not be determined.
- In
1996 the plaintiffs of the initial case, which had been filed in
1974, withdrew their case, informing the court that they did not have
a claim to plot no. 726.
- The
Menemen Cadastre Court carried out two further on-site inspections
and took oral evidence from local experts and witnesses. During the
on-site visit, a scientific expert and an agricultural expert also
inspected the area and submitted their observations concerning the
case.
- In
its judgment of 11 November 1998, the Menemen Cadastre Court stated
the following:
“... The disputed property, plot no. 726 in
Maltepe, was registered as a meadowland by the Land Registry
Commission. The Commission determined the plaintiffs as the owners of
the property having regard to the land registry records of 1921, 1946
and 1952. The Land Registry Commission's decision indicated the size
of the land in the amount of 2,258,000 square metres. Following
the objection filed by the Treasury, on 22 May 1974, the record at
the land registry was revised by the Land Registry Commission and the
Treasury was registered as the owner of plot no. 726.
Plot no. 1 in Seyrekköy village was registered with
the titles of some of the plaintiffs, who relied on the land registry
records for their action.
It has been understood from the local experts'
statements that the words “kulakistifan, yorgakioğlu,
çanako, karaistifan”, which were mentioned in the
land registry records of 1952, 1890 and 1884, were the names of the
Greeks who had left the country after the establishment of the
Republic.
According to Article 20/C of Law no. 3402, if the
borders indicated in the records and documents were not based on maps
or sketches and were uncertain and suitable for enlargement, the
amount indicated in these records and documents should be taken into
consideration.
According to the case-law of the Court of Cassation the
amount shall be taken into consideration if the records have unclear
borders.
It has been understood that “kulakistifan,
yorgakioğlu, çanako, karaistifan” are the names
of Greeks whose whereabouts are unknown. Therefore, the land registry
records should be valid as regards the amount of land indicated in
them. However, some of the plaintiffs acquired more land than
specified in the land registry records for plot no. 1 in the
Seyrekköy village. Consequently, the case should be dismissed
and, for the reasons explained above, the Treasury should be
registered as the owner of plot no. 726 in the Maltepe village.”
7. The Court of Cassation's decisions of 5 October 1999
and 26 February 2001
- On an unspecified date the applicants appealed against
the judgment of 11 November 1998.
- After holding a hearing on the merits of the case, on
5 October 1999 the Court of Cassation dismissed the appeal, for the
following reasons:
“It has not been proven that the amount of land
cited in the land registry records of 1884 included the disputed
plot. The record in question and the land registry records of 1926
had been revised in relation to plot no. 1 in Seyrekköy. It has
been understood that the size of plot no. 1 in Seyrekköy is
actually more than the size mentioned on the land registry records.
It has also been understood that the borders indicated in the land
registry records in respect of plot no. 1 in Seyrekköy are
uncertain. It is clear that the extent of the land in plot no. 1 is
greater than that indicated in both the land registry records.
Accordingly, it should be acknowledged that the land registry records
on which the plaintiffs based their action relate to plot no. 1 in
Seyrekköy. Therefore, the judgment should be upheld.”
- On
26 February 2001 the Court of Cassation dismissed the applicants'
request for rectification of the decision, holding that the land
registry records on which the plaintiffs had based their action in
fact related to plot no. 1 in Seyrekköy.
- The
decision dated 26 February 2001 was not served on the applicants. It
was deposited with the Registry of the Menemen Cadasre Court on 12
March 2001. The applicants stated that they only learned of it in
July 2001.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Non-observance of the six month rule
- The
Government contended that the applicants had failed to comply with
the six month rule in respect of these complaints. They asserted that
the applicants had not filed their application within six months of
the deposit of the final decision with the registry of the Menemen
Cadastre Court. Referring to the Court's decision in the case of
Tahsin İpek v. Turkey (application no. 39706/98,
7 November 2000), they claimed that the six month period had
started to run from 12 March 2001, the date on which the Court of
Cassation's final decision was deposited with the registry of the
Menemen Cadastre Court, and that the application had been introduced
on 5 October 2001, which was more than six months later.
39. The
Court notes that the Government relied on its decision in the Tahsin
İpek case which concerned the failure
of the applicant to procure the judgment of the Court of Cassation
for more than six months after it had been deposited with the
registry of the assize court. In this connection, it recalls that its
findings in the Tahsin İpek
case applied solely to the criminal proceedings since, according to
the established practice of the Court of Cassation, the latter's
decisions in criminal cases are not served on the defendants. In
civil law cases, however, the Court of Cassation's decisions are
served on the parties upon payment of the postage fee. Given that the
proceedings in the instant case were of a civil nature, and in the
absence of any contention that the applicants had failed to pay the
relevant fees, the domestic authorities were under an obligation to
notify the applicants of the final decision. As the applicants
learned of the decision in July 2001 and lodged their application
within six months of that date, they must be considered to have
complied with the six month rule laid down in Article 35 § 1 of
the Convention.
40. Accordingly,
the Government's objection must be dismissed.
B. Non-exhaustion of domestic remedies
- The
Government argued that the applicants have not exhausted domestic
remedies, as they failed to raise their complaint before the national
courts.
- The
Court reiterates that the obligation to exhaust domestic remedies
only requires that an applicant make normal use of effective and
sufficient remedies; that is, those capable of remedying the
situation at issue and affording redress for the breaches alleged.
- It
observes that the Turkish legal system does not provide any remedies
to accelerate the proceedings. Nor does it award any compensation for
delay. The Court accordingly concludes that there was no appropriate
and effective remedy which the applicants should have exercised for
the purposes of Article 35 § 1 of the Convention (see Mete v.
Turkey, no. 39327/02, §§ 18-19, 25 October 2005).
It therefore rejects this aspect of the Government's preliminary
objections.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As to the length of the proceedings
- 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 fair and public hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that claim.
- The
Court notes that the proceedings in question began on 29 July 1974
and ended on 26 February 2001. They thus lasted twenty six years and
seven months for two levels of jurisdiction dealing with the case
several times. The Court's jurisdiction ratione
temporis, however, only permits it to consider the period of
fourteen years and one month which has elapsed after 28 January 1987,
the date of deposit of Turkey's declaration recognising the right of
individual petition to the European Commission of Human Rights. It
must nevertheless take account of the state of the proceedings at
that time (see Şahiner v. Turkey, no. 29279/95, §
21, ECHR 2001-IX). It notes that by that date, the case had
already been pending 12 and a half years.
1. 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.
2. 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
application (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 here. Having regard to
its case-law on the subject, the Court finds 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.
B. As to the fairness of the proceedings
- The
applicants further contended under Article 6 § 1 of the
Convention that the decisions of the domestic courts had been
arbitrary. In their view, the domestic courts failed in the
evaluation of evidence and disregarded the evidence which proved
their property rights.
- The
Government maintained that the requirements of a fair hearing were
fulfilled in every aspect. They stated that the domestic courts'
decisions were based on documentary evidence, witness statements,
on-site inspections and expert reports.
- The
Court notes that, in the present case, the applicants mainly
complained about the assessment of evidence and the result of the
proceedings before the domestic courts. It recalls that it is not its
task to act as an appeal court of “fourth instance” by
calling into question the outcome of the domestic proceedings. The
domestic courts are best placed for assessing the relevance of
evidence to the issues in the case and for interpreting and applying
rules of substantive and procedural law (see, amongst many
authorities, Vidal v. Belgium, judgment of 22 April
1992, Series A no. 235-B, pp. 32-33, § 32).
- The
Court observes that, during the domestic proceedings, the applicants
had the benefit of adversarial proceedings. They were legally
represented throughout the proceedings and were able to argue their
claim to the ownership of the land and call witnesses in support
of their case. 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 decisions of the
Court of Cassation. In these circumstances, it cannot be contended
that the domestic court had overlooked important aspects of the case
or had failed to have regard to the historical background to the
dispute.
- As
a result, the relevant domestic decisions do not disclose any
manifestly arbitrary reasoning and the Court sees no appearance of a
violation of Article 6 § 1 as
regards the outcome of the proceedings.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Invoking
Article 1 of Protocol No. 1 to the Convention, the applicants alleged
that the domestic court decisions constituted an unjustified
interference with their right to property. In this connection, they
claimed that the land registry records dated 1884, 1947 and 1952
proved their ownership of plot no. 726 in the Maltepe Village.
Underlining the fact that they had not obtained a share in plot no. 1
in the Seyrekköy Village, the applicants complained that,
because of the arbitrary decisions of the national courts, they had
been deprived of their land which had belonged to their ancestors for
a long time.
- The
Government maintained that the applicants' complaint had been
thoroughly examined by the domestic courts and it had been
established that they had no property right to plot no. 726. The
Government noted that the land registry records, on which the
applicants had based their allegations, had already been taken into
consideration when determining the borders of plot no. 1 in
Seyrekköy.
- The
Court notes that the applicants' complaint under Article 1 of
Protocol No. 1 to the Convention is closely linked to that made under
Article 6 § 1 of the Convention. It further recalls
that it is not for the Court to settle the issue of ownership of
disputed land (see Nalbant v. Turkey (dec.), no. 61914/00, 12
May 2005).
- In
the present case, the domestic proceedings indeed concerned the
determination of ownership of land and, after a lengthy examination,
the domestic courts found that the applicants had no property right
to plot no. 726. Having regard to its conclusion above
concerning the fairness of the proceedings, the Court finds no
indication that the applicants have been arbitrarily or unlawfully
deprived of their property in breach of Article 1 of Protocol No. 1.
In the Court's view, the applicants cannot claim to have a
“possession” within the meaning of the first sentence of
Article 1 of Protocol No. 1 and the guarantees of that provision do
not therefore apply to the present case (see Sarıaslan and
Others v. Turkey (dec.), no. 32554/96, 23 March 1999;
Şişikoğlu v. Turkey (dec.), no. 38521/02, 20
October 2005)
- In
view of the above, the Court concludes that this complaint should 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 claimed 20,000,000 American dollars (USD) (approximately
14,500,000 euros (EUR)) in respect of pecuniary damage and USD
100,000 (approximately EUR 72,500) in respect of 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, the Court accepts that the applicants must have suffered
some non-pecuniary damage on account of the duration of the
proceedings, which cannot be sufficiently compensated by the finding
of a violation alone. Having regard to its case-law and making its
assessment on an equitable basis, the Court awards EUR 10,000 to each
of the applicants under this head.
B. Costs and expenses
- The
applicants also claimed USD 25,150 (approximately EUR 18,000)
for the costs and expenses incurred before the Court.
- The
Government contested the claim.
- 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 are reasonable as to
quantum. In the present case, the applicants have not substantiated
that they have actually incurred the costs claimed. Accordingly, it
makes no award under this head.
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 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 each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage,
to be converted into New Turkish liras at the rate applicable at the
date of settlement, free of any taxes or charges which may be
payable;
(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 18 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
