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FOURTH
SECTION
CASE OF ALİ ESEN v. TURKEY
(Application
no. 74522/01)
JUDGMENT
STRASBOURG
24
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 Ali Esen v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mrs P.
Hirvelä, judges,
and Mrs F. Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 74522/01) 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 Ali Esen
(“the applicant”), on 16 May 2001.
- The
applicant was represented by Mr Vural, a lawyer practising in Uşak.
The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
20 December 2005 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Uşak.
- On
2 July 1999 Mr A.Ç. filed a criminal complaint with the Hatay
public prosecutor against Mr M.Y. to whom he had sold his vehicle
with registration number 04 M 3070. He alleged that, during the sale,
Mr M.Y. used fake identity papers and gave him fake bonds in return
for his vehicle.
- On
4 August 1999 the applicant bought a vehicle with a registration
number 64 AF 984 from Mr M.O. to use in the course of his
professional activities and registered it under his name in the
Traffic Registry.
- On
20 September 1999 the Hatay public prosecutor found that the vehicle
which had been sold by Mr A. Ç to Mr M.Y. was subsequently
sold to the applicant with a fake registration number. The prosecutor
therefore ordered the confiscation of the vehicle.
- On
28 September 1999 the Hatay public prosecutor filed a bill of
indictment against Mr M.Y. for fraud and for forging false identity
papers. The charges were brought under Article 503 § 1, 522 and
350 of the Criminal Code.
- On
8 October 1999 the criminal proceedings against Mr M.Y. commenced
before the Hatay Criminal Court and the applicant intervened in the
proceedings as a third party together with three other people.
- On
17 July 2000 the applicant requested the restitution of his car. This
request was rejected by the court on 18 July 2000 on the ground that
the ownership of the car was in dispute.
- On
18 October 2000 the first-instance court declined jurisdiction and
transferred the case to the Hatay Assize Court.
- On
31 October 2000 the proceedings before the Hatay Assize Court
commenced.
- In
the hearing held on 11 January 2001, the court dismissed the requests
of restitution of both the applicant and Mr A.Ç. on the ground
that the ownership of the car was in dispute.
- On
26 June 2001 the court decided that the car could be returned to the
applicant for his use pending the criminal proceedings. It set the
amount of TRL 5,000,000 as a deposit. The applicant was unable
to request the return of the car since he could not pay the deposit.
- On
an unspecified date, the applicant requested the court to allow the
car to be returned to him, pending criminal proceedings, without a
deposit.
- On
19 September 2002 the court ordered the return of the car to the
applicant, pending criminal proceedings, without a deposit. The car
was examined for any damage sustained during its seizure before being
delivered to the applicant on 2 October 2002.
- The
criminal proceedings are still pending before the Hatay Assize Court
since, despite an arrest warrant, Mr M.Y. has still not been found.
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, 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 ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested the claim.
- The
period to be taken into consideration began on 8 October 1999 and has
not yet ended. It has thus already lasted more than seven years for a
single level of jurisdiction.
A. Admissibility
- The
Government argued in the first place that as no criminal proceedings
were brought against the applicant, Article 6 was not applicable in
the instant case.
- The
Court notes that in the instant case no criminal charges have been
brought against the applicant and that he intervened in the criminal
proceedings against Mr M.Y. as a third party. Furthermore, the
confiscation of his car is a preventive measure and cannot be
compared to a criminal sanction. As a result, Article 6 of the
Convention is not applicable in its criminal aspect. Nevertheless, it
is observed that the outcome of the proceedings would have a
pecuniary impact on the applicant and therefore the proceedings
complained of affect the applicant’s right of property, which
according to the Court’s case-law is a civil right (see
Sporrong and Lönnroth, Sporrong and Lönnroth v.
Sweden, judgment of 23 September 1982, Series A no. 52,
p. 29, § 79). The Court therefore considers that in the instant
case Article 6 § 1 is applicable in its civil branch (see
Yıldırım v. Italy (dec.), no. 38602, 10 April
2003). It therefore rejects the Government’s preliminary
objection.
- 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 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 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
case (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 in the present case.
Having regard to its case-law on the subject, the Court considers
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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant submitted that the confiscation of his car amounted to an
infringement of his right to the peaceful enjoyment of his
possessions in breach of Article 1 of Protocol No. 1 to the
Convention. He also complained that because of the confiscation of
his car, he was deprived of his livelihood.
- The
Government argued in the first place that the applicant has not
exhausted domestic remedies within the meaning of Article 35 of the
Convention. They maintained that the applicant could have filed an
objection against the confiscation order pursuant to Article 298 of
the Criminal Procedure Code. Secondly, they contended that this
complaint was unsubstantiated. In this connection, they stated that
the vehicle in question had been returned to the applicant in 2002
and that the confiscation order, which had been issued because there
was a dispute over the ownership of the car, was in accordance with
the domestic law and served the general interest.
- The
Court does not consider it necessary to decide whether the applicant
may be considered to have complied with the requirements of Article
35 § 1 of the Convention since this complaint should in any case
be declared inadmissible for the following reason.
- The
Court reiterates that Article 1 of Protocol No. 1, which guarantees
the right to the protection of property, contains three distinct
rules: “the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest... The three rules
are not, however, ‘distinct’ in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule” (see
Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 62,
11 January 2007).
- In
the present case, it is undisputed that the confiscation of the
applicant’s car constituted an interference with his right to
the peaceful enjoyment of his possessions. It is however noted that
the confiscation of the car was ordered as there was a dispute over
the ownership of the car. Thus, even though the measure in question
led to a deprivation of possessions, it was an instance of the
control of use of property within the meaning of the second paragraph
of Article 1 of Protocol No. 1.
- According
to the Court’s case-law, interference for the purposes of the
second paragraph must be prescribed by law and pursue a legitimate
aim. Furthermore, it should strike a fair balance between the demands
of the general interests of the community and the requirements of the
protection of the individual’s fundamental rights. The concern
to achieve this balance is reflected in the structure of Article 1 of
Protocol No. 1 as a whole. The requisite balance will not be found if
the person concerned has had to bear an individual and excessive
burden (see, among other authorities, Sporrong and Lönnroth
v. Sweden, cited above, pp. 26 and 28, §§ 69 and
73).
- In
that connection, the Court observes that the confiscation of the
applicant’s car was ordered pursuant to Article 86 of the
Criminal Procedure Code to prevent its unlawful use, as there was a
dispute over the ownership of the car. It was therefore an
interference prescribed by law and the impugned measure served the
general interest.
- As
regards the balance between the aim and the applicant’s
fundamental rights, the Court notes that on 19 September 2002 the
vehicle was returned to the applicant without charge as a trustee,
pending the outcome of the proceedings.
- In
view of the foregoing and having regard to the margin of appreciation
left to States concerning “the use of property in accordance
with the general interest”, the Court concludes that the
interference with the applicant’s right to the peaceful
enjoyment of his possessions was not disproportionate in relation to
the legitimate aim pursued.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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 35,653.79 euros (EUR) in respect of pecuniary
damage and EUR 20,000 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. On
the other hand, the Court accepts that the applicant must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Ruling
on an equitable basis, the Court awards the applicant EUR 4,800 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 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 his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the full sum claimed.
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 Article 1 of
Protocol No. 1 inadmissible and the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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
4,800 (four 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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Araci Nicolas Bratza Deputy Registrar President
