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SECOND
SECTION
CASE OF BARKER v. TURKEY
(Application
no. 34656/03)
JUDGMENT
STRASBOURG
22
September 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 Barker 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 Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34656/03) 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 Cüneyt
Mehmet Barker (“the applicant”), on 9 July 2003.
The applicant was represented by Mr
K. Koç, a lawyer practising in Istanbul. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
16 October 2007 the
Court decided to give notice of the application to the Government. It
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 1949 and lives in Istanbul.
- On
15 August 1988 the applicant brought a case before the Erdek Civil
Court against the Treasury, requesting to be registered as the owner
of a certain plot of land.
- On
17 April 1990 the Erdek Civil Court granted the applicant's request.
The Treasury appealed.
- Whenever
he inquired about the outcome of the appeal proceedings, the
applicant was informed by the registry of the first-instance court
that the proceedings were still pending. In 1998, however, the
applicant was informed by the Court of Cassation that the latter had
actually rendered its decision long before, on 28 October 1992. The
Erdek Civil Court declared, in response to a petition from the
applicant, that the case file had never been sent back to it and it
had subsequently attempted to recreate the case file, which appeared
to have been lost.
- On
8 May 1998 the Treasury filed a petition with the Court of Cassation
requesting that the decision of 28 October 1992 be rectified.
- On
28 September 1998 the Court of Cassation decided that it could not
examine the Treasury's request as the reconstituted file was not
sufficient and it needed the original case file for such an
examination. It therefore decided to send the file back to the Erdek
Civil Court. According to the information submitted by the parties to
the Court, the proceedings are still pending.
- In
2001 the Land Registry Commission attached to the General Directorate
of Land Registration conducted a land registry survey and registered
the title to the relevant plot under the name of a certain K.T. and
the Treasury.
- On
30 May 2001 the applicant brought a case before the Erdek Cadastral
Court, challenging the land registry survey.
-
On 18 May 2004 an on-site inspection of the land was carried out, and
on 20 October 2004 the Erdek Cadastral Court allowed the applicant's
request in part.
- On
10 November 2005 the Court of Cassation upheld the judgment of 20
October 2004 and on 26 February 2007 it dismissed the Treasury's
rectification request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings, both before
the Erdek Civil Court and before the Erdek Cadastral Court, had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention.
- The
Government contested that argument.
- As
regards the proceedings before the Erdek Civil Court, the period to
be taken into consideration began on 15 August 1988 and has not yet
ended, according to the information in the case file submitted by the
parties. It has thus already lasted over twenty-one years before two
levels of jurisdiction.
- As
regards the proceedings before the Erdek Cadastral Court, the period
to be taken into consideration began on 30 May 2001 and ended on
26 February 2007. It thus lasted five years and nine months
before two levels of jurisdiction.
- The
Court notes that the application 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.
- As
to the merits, the Court notes, regarding the proceedings before the
Erdek Civil Court, that it is not disputed between the parties that
the original case file remains lost and that the proceedings are
still pending before the Court of Cassation, which seems to be unable
to examine the Treasury's rectification request due to the incomplete
state of the reconstituted file.
- As
for the proceedings before the Erdek Cadastral Court, the Court notes
that the case was pending before the first instance court for
approximately three years and five months, despite its lack of
complexity. In particular, the Court notes that, although the
proceedings commenced on 30 May 2001, the on-site inspection was
only conducted on 18 May 2004, no major steps having been taken by
the authorities in the meantime.
- 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, for example, Talipoğlu v. Turkey, no.
64236/01, §§ 36 38, 24 July 2007).
- 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
application. Having regard to its case-law on the subject, the Court
finds that the length of the proceedings, both before the Erdek Civil
Court and before the Erdek Cadastral Court, was excessive and failed
to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages, and costs and expenses
- The
applicant claimed 70,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested these claims.
- On
the question of pecuniary damage, the Court observes that the
applicant has not produced any document in support of his claim. It
accordingly dismisses it.
- However,
the Court accepts that the applicant must have suffered non-pecuniary
damage which cannot be sufficiently compensated by the finding of a
violation alone. Taking into account the circumstances of the case
and having regard to its case-law, the Court awards the applicant
EUR 21,000.
- The
applicant did not claim any costs and expenses. Accordingly, no award
is made under this head.
B. 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 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, EUR 21,000
(twenty-one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, which sum is 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
