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SECOND
SECTION
CASE OF BİÇER
AND OTHERS v. TURKEY
(Application
no. 19441/04)
JUDGMENT
STRASBOURG
20 July
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 Biçer and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19441/04) 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 five Turkish nationals, Mrs Züleyha Biçer, Mrs Birsen
Ergünhan, Mr Ahmet Karaçakıl,
Mrs Hacer Dalgıç and Mrs Hayriye Savruk (“the
applicants”), on 4 May 2004.
- The
applicants were represented by Ms S.E. Altaş and Mr N. Altaş,
lawyers practising in İstanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
28 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
applicants were born in 1933, 1938, 1952, 1948 and 1945 respectively,
and live in Balıkesir and Istanbul.
- On
8 December 1972 the applicants' mother lodged a case with the Gönen
Civil Court against the Treasury and the Office of the Headman of the
Paşaçiftlik village (muhtarlık), requesting that
plots of land nos. 117, 130, 135, 168, 274, 438, 494, 497 and
578 be registered in her name. Six other persons intervened in the
case, laying claim to the same plots.
- On
28 March 1977 the Gönen Civil Court delivered a decision of
non jurisdiction and transferred the case to the Gönen
Cadastre Court.
- On
an unspecified date the applicants' mother died. On 24 October 1984
the applicants informed the first-instance court that they wished to
become parties to the proceedings, as heirs.
- On
18 March 2005 the court dismissed the applicants' case and held that
the land should have been registered in the name of the interveners'
heirs.
- On
22 June 2006 the Court of Cassation quashed the judgment of the
first-instance court.
- On
4 March 2007 the first-instance court resumed the examination of the
case following its remittal by the Court of Cassation.
- On
28 January 2009 the last hearing was held.
- According
to the information submitted to the case file in June 2009, the
proceedings are currently pending before the Gönen Cadastre
Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention.
- The
Government argued that the case was complex.
- The
period to be taken into consideration began on 8 December 1972,
when the applicants' mother initiated proceedings before the Gönen
Civil Court. The proceedings are still pending before the
Gönen Cadastre Court. They have thus lasted well over 36
years.
- The
Court's jurisdiction ratione temporis only permits it to
consider the period of 23 years that 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). On that crucial date, the
proceedings had already lasted more than 14 years.
A. Admissibility
- The
Government first submitted that the whole application was outside the
Court's competence ratione temporis.
- The
Court notes, apart from the considerations above, that it has already
dismissed such an objection in its Şahiner judgment
(cited above, § 16). It finds no particular circumstances
in the instant case which would require it to depart from that
finding. Accordingly, the Court rejects this objection.
- The
Government further argued that the applicant could not be considered
to have exhausted domestic remedies as the civil proceedings were
still pending before the first-instance court.
- The
Court notes that, according to its case-law, complaints concerning
the length of proceedings can be brought before it prior to the final
termination of the proceedings in question (see, among many others,
Plaksin v. Russia, no. 14949/02, §§ 34-35, 30 April
2004). Accordingly, the Government's objection regarding
non-exhaustion must be dismissed. It further notes that this part of
the application is not inadmissible on any other grounds. It must,
therefore, be declared admissible.
B. Merits
- The
Government submitted that the length of the proceedings had not
exceeded the reasonable time requirement. They argued that the
applicants' case had been a complex one, having included several
interveners and parcels, whose owners had to be determined. The
Government further stated that the conduct of the parties had
contributed to the undue delays in the proceedings.
- The
applicants maintained their allegations.
- 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 Ezel Tosun v. Turkey, no. 33379/02, 10
January 2006). 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 finds that the length of the proceedings is excessive and has
failed to meet the “reasonable time” requirement. There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicants claimed 200,000 euros (EUR) for pecuniary, and
EUR 300,000 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, deciding on an equitable basis, it awards the applicants,
jointly,
EUR 15,600 for non pecuniary damage.
- Furthermore, according to the
information submitted by the parties, the proceedings are still
pending before the first-instance court. In these circumstances, the
Court considers that an appropriate means for putting an end to the
violation of Article 6 § 1 of the Convention would
be to conclude the civil proceedings in issue as speedily as
possible, while taking into account the requirements of the proper
administration of justice (see, mutatis
mutandis,
Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
- The
applicants claimed EUR 20,000 in respect of the costs and
expenses and 68 Turkish liras (TRY)
for postal expenses. In support of their
claims, the applicants submitted the receipts of legal expenses
incurred before the domestic courts and an invoice in respect of
postal expenses. The Government disputed these claims. According to
the Court's case-law, an applicant is entitled to the 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, given the information in its possession
and the above criteria, the Court, ruling on an equitable basis,
awards the applicants, jointly, EUR 500 in respect of costs and
expenses.
- 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 applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
at the rate applicable at the date of settlement;
(i) EUR 15,600
(fifteen thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 500
(five hundred euros), plus any tax that may be chargeable to the
applicants, 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 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 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
