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SECOND
SECTION
CASE OF ALİ KEMAL UĞUR AND OTHERS v. TURKEY
(Application
no. 8782/02)
JUDGMENT
STRASBOURG
3
March 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 Ali Kemal Uğur and Others 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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having deliberated in private on 10
February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8782/02) 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 21 Turkish nationals (“the applicants”), on
11 December 2001. The applicants, whose names, dates of birth
and places of residence are set out in the appendix, were represented
before the Court by Mr Yavuz Selim Sarıibrahimoğlu, a
lawyer practising in Ankara. The Turkish Government (“the
Government”) were represented by their Agent.
- On
5 November 2007 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 CIRCUMSTANCES OF THE CASE
- The
applicants' ancestors emigrated to Anatolia from the Caucasus during
the Ottoman-Russian War of 1877-1878. In 1920 the authorities gave
them usufructuary rights to a piece of land located within the
administrative division of the town of Kadirli, near Adana. Although
they were able to use the land, they were not able to buy it. In
1926, when the Civil Code of the then newly founded Turkish Republic
entered into force, it became possible for private individuals to own
property.
- Between
1924 and 1929 a Mr Ali Saip Ursavaş, who had been an army
commander, a member of Parliament and a judge, forced the applicants'
ancestors and a number of other villagers living in the same area of
their land and registered the land in his own name and that of his
wife.
- A
court case was brought in 1950s to challenge the registration of the
land in the name of the Ursavaş family. In 1965 the applicants'
ancestors applied to the Kadirli Title Deeds Registration Court
(hereafter “the Kadirli Court”) and asked to be given
permission to join the proceedings as interveners. This request was
rejected on 7 April 1967.
- An
appeal lodged by the applicants' ancestors against the decision of
the Kadirli Court was upheld by the Court of Cassation and the
decision of 7 April 1967 was thus quashed.
- The
proceedings, which recommenced before the Kadirli Court in 1969,
ended 14 years later with a decision of 21 July 1983. The Kadirli
Court found in favour of the applicants' ancestors (as, by that date,
some of the applicants had started taking part in the proceedings
themselves, for practical reasons those applicants as well as the
ancestors of the younger applicants will hereafter be referred to as
“the applicants”) and ordered the registration of the
land in their names in the Land Register.
- An
appeal lodged by the Treasury and the heirs of Ali Saip Ursavaş
against the decision of 21 July 1983 was upheld by the Court of
Cassation on 13 November 1984. The decision of 21 July 1983 was
thus quashed. A revision request made by the applicants was also
rejected.
- Proceedings
recommenced before the Kadirli Land Registry Court in 1987. These
proceedings continued for nine years and ended on 4 March 1996.
In its decision the Kadirli Land Registry Court rejected the
applicants' claims in respect of plots nos. 1-3, and severed the
proceedings in so far as they concerned plots nos. 4-6.
- In
the meantime, on 10 May 1994 five of the applicants, namely Gülşen
Başdoğan, Akif Uğur, Salih Uğur, Mahmut Nedim
Uğur and Cevriye Uğur, gave a power of attorney to Hanifi
Uğur to represent them in all proceedings in Turkey.
1. Proceedings concerning plots nos. 1-3
- On
18 July 1997 the applicants appealed against the decision of 4 March
1996 in so far as that decision concerned their entitlement to plots
nos. 1-3. This appeal was rejected by the Court of Cassation on 6
July 1999. The Court of Cassation upheld the requests made by a
number of other persons who were also participating in the
proceedings in respect of plots nos. 1-3 and quashed the decision of
4 March 1996 in so far as it concerned those persons' claims. A new
set of proceedings in respect of those persons' entitlement to plots
nos. 1-3 began.
- A
request made by the applicants on 8 November 1999 for a revision of
the decision was rejected on 6 June 2001 and the decision of
4 March 1996 thus became final in so far as it concerned
the applicants' entitlement to plots nos. 1-3. The proceedings
concerning other persons' entitlement to plots nos. 1-3 continued.
2. Proceedings concerning plots nos. 4-6
- In
1996 new proceedings started before the Kadirli Land Registry Court
in respect of plots nos. 4-6. These proceedings ended on 24 June 1997
with a decision in which the applicants' claims in respect of plot
no. 4 were rejected. The applicants appealed on 23 February 1998.
- On
9 October 2000 the Court of Cassation quashed the decision of 24 June
1997 and decided that the proceedings concerning plots nos. 4-6
should be joined to the other pending proceedings which concern other
persons' entitlement to plots nos 1 3.
- The
proceedings concerning both sets of plots were thus joined and they
are still continuing with the participation of several hundred heirs
of the original plaintiffs and of the Ursavaş family.
- The
names of only two of the applicants - Mr Ali Kemal Uğur and Mr
Ömer Lütfi Uğur - feature in the petitions submitted
to the domestic courts and in the decisions rendered by those courts.
THE LAW
I. ALLEGED VIOLATIONS 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. They further complained
under the same Article that the Court of Cassation, in its decision
of 13 November 1984, had made a procedural mistake. Article 6 of the
Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal...”
A. The complaint concerning the length of the
proceedings
- The
Court notes that the period to be taken into consideration began on
28 January 1987, when the recognition by Turkey of the right of
individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time (see Şahiner
v. Turkey, no. 29279/95, § 21, ECHR 2001-IX). It notes
that by that date, the case, in so far as it concerns the applicants,
had already been pending for 22 years (see paragraph 5 above). The
period in question has not yet ended as the proceedings are still
ongoing. It has thus lasted 22 years for three levels of
jurisdiction.
1. Admissibility
a. Victim status
- The
Government argued that 19 of the 21 applicants whose names do not
feature in the domestic proceedings cannot claim to be victims
because they had not intervened in the proceedings.
- The
applicants maintained that, as they were the heirs of those who had
taken part in the proceedings over the years, they had the right,
under domestic law, to intervene in the proceedings in question.
Indeed, the fact that five of them had given a power of attorney to
Hanifi Uğur to act on their behalf was a proof that they had
been participating in the proceedings (see paragraph 10 above).
- The
Court notes at the outset that, at the time of giving notice of the
application to the respondent Government, each applicant was
requested to clarify, by referring to the necessary documents, the
proceedings in which they had taken part and for how long.
Nevertheless, the applicants failed to comply with that request.
Instead, they submitted to the Court documents, showing that they are
the heirs of some of the persons who had initiated or participated in
the proceedings.
- As
to the power of attorney authorising Hanifi Uğur – who
himself is one of the applicants – to represent five of the
applicants, the Court notes that that power of attorney does not make
an express reference to the proceedings which are the subject matter
of the present application. Moreover, the name of Mr Hanifi Uğur
does not feature in any of the decisions rendered by the domestic
courts or in the petitions submitted to those courts.
- The
Court notes that domestic legislation does indeed allow the
applicants to join the ongoing proceedings and to take the place of
their deceased relatives. Nevertheless, as pointed out earlier, the
applicants have not provided the Court with any documentary evidence
showing that they had done so.
- The
Court concludes, therefore, that for the purposes of the complaint
concerning the length of the proceedings under Article 6 § 1 of
the Convention, only two of the applicants - Mr Ali Kemal Uğur
and Mr Ömer Lütfi Uğur - whose names feature in
the domestic courts' decisions, can claim to be victims within the
meaning of Article 34 of the Convention. The claim of the other 19
applicants must be rejected as being incompatible ratione personae
with the provisions of the Convention, pursuant to Article 35 §§
3 and 4.
b. Exhaustion of domestic remedies
- The
Government were of the opinion that, as the proceedings were still
pending, the applicants had not yet complied with the obligation to
exhaust domestic remedies and, as such, the complaint was premature.
- The
Court draws the Government's attention to the fact that the
applicants' complaint relates specifically to the length of the
proceedings which have been continuing since 1950s.
- In
any event, it is to be noted that the Turkish legal system does not
provide any remedies to accelerate the proceedings or to obtain any
compensation for such delays. It follows that there was no
appropriate and effective remedy which the applicants could have used
for the purposes of Article 35 § 1 of the Convention (see Mete
v. Turkey, no. 39327/02, §§ 18 19, 25 October
2005). The Court therefore rejects the Government's 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 in so far as it concerns Mr Ali
Kemal Uğur and Mr Ömer Lütfi Uğur.
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 in the present case.
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 of the Convention
in respect of the applicants Mr Ali Kemal Uğur and Mr Ömer
Lütfi Uğur.
B. The remaining complaint under Article 6 of the
Convention
- The
applicants complained that the Court of Cassation had made a
procedural mistake in its decision of 13 November 1984 (see paragraph
8 above).
- The
Court notes that the decision referred to by the applicants was
adopted before 28 January 1987, that is before the recognition
by Turkey of the right of individual petition took effect.
- It follows that this complaint is incompatible ratione
temporis
with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected pursuant to
Article 35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- In
their application form, the applicants relied on Article 8 of the
Convention and argued that their right to respect for their home had
been infringed on account of their inability to use their houses and
land for over 70 years. In this connection the applicants maintained
that the respondent State had breached its positive obligation by
failing to protect them from unjust interference by private
individuals.
- In
their observations submitted to the Court on 25 September 2008, the
applicants requested the Court to examine this complaint both under
Article 8 of the Convention and under Article 1 of Protocol No. 1 to
the Convention.
- The
Court considers that, in the circumstances of the present case, no
issues arise under Article 8 of the Convention. In any event, even
assuming that the complaint made by the applicants under Article 8
can also to be examined under Article 1 of Protocol No. 1 to the
Convention, it is inadmissible for the following reasons.
- The
Court observes that the proceedings concerning plots nos. 1-3 were
concluded on 6 June 2001 when the Court of Cassation upheld the
decision of 4 March 1996 in which the applicants' claims in respect
of those plots had been rejected by the first instance court (see
paragraph 12 above). It must be stressed at this juncture 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). Furthermore, the Court finds no indication of arbitrariness in
the domestic courts' decisions in reaching their decisions in respect
of the applicants' entitlement to plots nos. 1-3. It follows that, in
so far as plots nos. 1-3 are concerned, 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, mutatis
mutandis, Pekinel v. Turkey, no. 9939/02, §§ 57-61,
18 March 2008).
- As
regards the plots nos. 4-6, the Court observes that the proceedings
relating to those plots are still pending (see paragraph 15 above)
and the issue of whether or not the applicants have a lawful title
thereto is not yet determined.
- In
view of the above, the Court concludes that this complaint should be
rejected as being manifestly ill-founded as a whole, 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
applicants claimed 6,383,580 new Turkish liras (approximately
3,500,000 euros (EUR))
in respect of pecuniary damage. Each applicant also claimed EUR
30,000 in respect of non-pecuniary damage.
- The
Government contested the claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards each of the two applicants Mr Ali Kemal Uğur
and Mr Ömer Lütfi Uğur EUR 19,200 in respect of
non-pecuniary damage.
- Furthermore,
having regard to the fact that the proceedings in question are still
pending before the domestic courts (see paragraph 15 above), the
Court considers that the most appropriate form of redress would be to
bring them to a conclusion as soon as possible, by conducting them in
accordance with the requirements of Article 6 § 1 of the
Convention (see, Uğuz v. Turkey, no. 31932/03, § 30,
13 December 2007).
B. Costs and expenses
- The
applicants did not submit a claim for costs and expenses.
Accordingly, the Court considers that there is no call to award them
any sum on that account.
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 introduced by Mr Ali
Kemal Uğur and Mr Ömer Lütfi Uğur 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 in respect of Mr Ali Kemal Uğur and
Mr Ömer Lütfi Uğur;
- Holds
(a) that
the respondent State is to pay each of these two applicants, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 19,200 (nineteen thousand two hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State 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 amounts 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 two applicants'
claim for just satisfaction.
Done in English, and notified in writing on 3 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
List of Applicants
1. Ali Kemal Uğur, 1930, Yeşilyepe Village, Kahramanmaraş
2. Cevriye Uğur, 1962, Yeşilyepe Village, Kahramanmaraş
3. Gülşen Başdoğan, 1964, Kadirli, Osmaniye
4. Akif Uğur, 1955, Yeşilyepe Village, Kahramanmaraş
5. Hüseyin Uğur, 1941, Yeşilyepe Village,
Kahramanmaraş
6. Salih Uğur, 1960, Yeşilyepe Village, Kahramanmaraş
7. Mahmut Nedim Uğur, 1948, Yeşilyepe Village,
Kahramanmaraş
8. Doğan Uğur, 1963, Yeşilyepe Village, Kahramanmaraş
9. Ömer Lütfi Uğur, 1922, Yeşilyepe Village,
Kahramanmaraş
10. Münevver Uğur, 1962, Yeşilyepe Village,
Kahramanmaraş
11. Özkan Uğur, 1985, Yeşilyepe Village, Kahramanmaraş
12. Yusuf Uğur, 1975, Yeşilyepe Village, Kahramanmaraş
13. Türkan Uğur, 1974, Yeşilyepe Village,
Kahramanmaraş
14. Rifail Uğur, 1981, Yeşilyepe Village, Kahramanmaraş
15. Fatma Uğur, 1950, Yeşilyepe Village, Kahramanmaraş
16. İclal Uğur, 1981, Yeşilyepe Village, Kahramanmaraş
17. Melek Uğur, 1927, Yeşilyepe Village, Kahramanmaraş
18. Gülendam Uğur, 1942, Yeşilyepe Village,
Kahramanmaraş
19. Bünyamin Uğur, 1977, Kadirli, Osmaniye
20. Hanifi Uğur, 1955, Kadirli, Osmaniye
21. Halit Uğur, 1949, Yeşilyepe Village, Kahramanmaraş
