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SECOND
SECTION
CASE OF SARUHAN AND ÇELİK v. TURKEY
(Application
no. 5298/06)
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 Saruhan and Çelik 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. 5298/06) 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 two Turkish nationals, Mr Rıdvan Saruhan and Mr Abdulvahit
Çelik (“the applicants”), on 2 February 2006.
- The
applicants were represented by Mr C. Göksel, a lawyer practising
in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
18 June 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
first applicant was born in 1959 and lives in Mardin. By a letter
dated 11 June 2008, the applicants' representative informed the Court
that the second applicant had died on 10 March 2007 and that his son
Mr Abdulvahap Çelik wished to pursue the application.
- In
1974, a third person named B.A. inherited a plot of land from her
mother, a Syrian national. However, she did not have the land
registered in her name at the time.
- On
9 July 1996 B.A.'s representative signed an agreement with the
applicants before a notary public, promising to sell the land to
them. The applicants paid the amount due and were told that B.A.
would finalise the relevant formalities and transfer the ownership of
the land to the applicants in the shortest possible time.
- On
1 August 1996 the applicants brought an action against B.A. before
the Üsküdar Civil Court of General Jurisdiction. They
claimed that she had failed to transfer the ownership of the land to
them, although they had paid the purchase price. They requested that
the land be registered in their names.
- On
30 December 2003 the court dismissed the action. It held that on
1 October 1966 the Cabinet of Ministers had issued a decree
seizing the property of Syrian nationals living in Turkey, including
the land in question. As the land had been owned by the State since
1966, the court concluded that the sale agreement of 9 July 1996
signed by B.A. was void.
- Both
parties appealed against that decision. B.A. also put forward a plea
of unconstitutionality against the decree of 1966.
- On
28 February 2005 the Court of Cassation dismissed the plea of
unconstitutionality and upheld the first instance court's decision.
- On
7 July 2005 the Court of Cassation rejected the applicants' request
for rectification. This decision was not served on the applicants and
they learned about the outcome of the proceedings by tracking their
application through the Court of Cassation's web site.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government contended that the applicants had failed to comply with
the six months rule. They submitted that a notification letter had
been sent to the applicants' representative on 29 July 2005. However,
as he had changed his address, it had not been possible to notify the
final decision to him. Referring to the Court's case-law (Levent
Öztürk v. Turkey (dec.), no. 8428/02, 10 October
2006), the Government maintained that in the instant case the six
months time-limit should start to run from the date of deposit of the
final decision with the registry of the Üsküdar Civil Court
of General Jurisdiction, namely from 25 July 2005.
- The
Court notes that the Levent Öztürk case referred to
by the Government 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 State Security Court.
In this connection, it recalls that its findings in the above-cited
case applied solely to 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. Therefore in
the present case, the authorities were required to serve the final
decision on the applicants' lawyer. The Court further refers to the
Government's submission that the applicants' representative had
failed to inform the authorities of his new address. However, it is
clear from the documents in the case file that the applicants'
representative had indicated his new address in his rectification
petition. The applicants lodged their application with the Court on 2
February 2006, six months and twenty-seven days after the delivery of
the final judgment. Having regard to the Government's failure to
serve the final decision at the correct address of the applicants'
representative, in the special circumstances of the present case the
Court concludes that the applicants must be considered to have
complied with the six months rule laid down in Article 35 § 1 of
the Convention. It therefore rejects the Government's preliminary
objection in this respect.
II. 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, 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 that argument.
- The
period to be taken into consideration began on 1 August 1996 and
ended on 7 July 2005. It thus lasted eight years and eleven months at
two levels of jurisdiction.
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 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 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 about the outcome of
the proceedings. They further invoked Article 13 of the Convention
and stated that, as the Court of Cassation had refused their
unconstitutionality plea concerning the Decree in dispute, they had
been denied an effective remedy. The applicants also alleged a
violation of Article 1 of Protocol No. 1, stating that they had
been deprived of their land. Finally, they invoked Article 14 of the
Convention, arguing that the Decree relied on by the domestic courts
had resulted in discrimination.
- An
examination by the Court of the material submitted to it does not
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly -ill- founded
and must be declared inadmissible 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 10,000,000 euros (EUR), covering both pecuniary
and non-pecuniary damage.
- The
Government submitted that the amount claimed was excessive and would
lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicants must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
EUR 4,200 to each of the applicants under that head.
B. Costs and expenses
- The
applicants' representative requested to be awarded 20% of the
applicants' compensation.
- 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 were reasonable as to
quantum. In the present case, regard being had to the above criteria
and the applicants' failure to substantiate the claim, the Court
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 4,200 (four thousand two hundred euros) in
respect of non-pecuniary damage, to be converted into Turkish liras
at the rate applicable at the date of settlement and free of any
taxes or charges that 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
