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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Ali GOCMEN and Others v Turkey - 17293/07 [2011] ECHR 1753 (27 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1753.html Cite as: [2011] ECHR 1753 |
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SECOND SECTION
DECISION
Application no.
17293/07
by Ali GÖÇMEN and
Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 September 2011 as a Committee composed of:
David
Thór Björgvinsson,
President,
Giorgio
Malinverni,
Guido
Raimondi,
judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having regard to the above application lodged on 10 April 2007,
Having regard to the declaration submitted by the respondent Government on 28 January 2011 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicants are Turkish nationals who live in Turkey. Their names and dates of birth are indicated in the Appendix. They were represented before the Court by Mr H. Geylani and Ms Y. Geylani Arslan, lawyers practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 March 1987 the applicants brought compensation proceedings against the Directorate of the Land Registry, claiming that the administration had annulled their title deed as their property had been registered unlawfully.
On 30 November 1994 the Kırıkhan Civil Court of General Jurisdiction issued a decision of lack of jurisdiction and transferred the case to the Adana Administrative Court. The Court of Cassation upheld the judgment of the first-instance court on 31 May 2006.
Nevertheless, on 22 September 2006 the Adana Administrative Court, to which the case had been transferred, held that it lacked jurisdiction as well and that the applicant failed to fulfil the procedural requirement to bring the case before the Administrative Court within the statutory time-limit. The court further decided that the case should be returned to the Civil Court. The impugned proceedings became final with that decision.
On 9 November 2006 the final decision was served on the applicant.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention about the length of the civil proceedings before the Kırıkhan Civil Court of General Jurisdiction.
Relying upon Article 1 of Protocol No. 1 to the Convention, the applicants maintained that they were deprived of their property in that the administration unlawfully annulled their title deed.
THE LAW
1. As to the complaint about the length of proceedings
The applicants mainly complained about the length of civil proceedings concerning a property dispute. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a] ... tribunal... ”
By letter dated 28 January 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“Je déclare que le Gouvernement de la République de Turquie offre de verser au requérants, M. Ali Göçmen, M. Bektaş Göçmen, M. Yusuf Göçmen et Mme Filiz Göçmen, conjointement, la somme de 15 500 (quinze mille cinq cents) euros, couvrant tout préjudice matériel et moral ainsi que 500 (cinq cents) euros, couvrant l’ensemble des frais et dépens, plus tout montant pouvant être dû à titre d’impôt par le requérant, sommes qu’il considère comme appropriées à la lumière de la jurisprudence de la Cour.
Cette somme sera convertie en livres turques au taux applicable à la date du paiement, et exemptes de toute taxe éventuellement applicable. Elle sera payée dans les trois mois suivant la date de la notification de la décision de la Cour rendue conformément à l’article 37 § 1 de la Convention européenne des droits de l’homme. A défaut de règlement dans ledit délai, le Gouvernement s’engage à verser, à compter de l’expiration de celui-ci et jusqu’au règlement effectif de la somme en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque centrale européenne, augmenté de trois points de pourcentage. Ce versement vaudra règlement définitif de l’affaire.
Le Gouvernement considère que la procédure interne engagée par les requérants a connu une durée excessive au sens de la jurisprudence bien établie de la Cour (Daneshpayeh c. Turquie, no 21086/04, 16 juillet 2009). Il invite respectueusement la Cour à dire qu’il ne se justifie plus de poursuivre l’examen de la requête et à la rayer du rôle conformément à l’article 37 de la Convention.”
The applicants did not respond to the unilateral declaration of the Government.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar v. Turkey judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003 VI; also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.), no. 28953/03; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Silva Marrafa v. Portugal (dec.), no. 56936/08, 25 May 2010; Karal v. Turkey (dec.), no. 44655/09, 29 March 2011; and Barış İnan v. Turkey (dec.), no. 20315/10, 24 May 2011).
The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 V; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; and Daneshpayeh v. Turkey, no. 21086/04, §§ 28-29, 16 July 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike this part of the case out of the list.
2. As to the complaint about the alleged deprivation of possessions
The applicants complained under Article 1 of Protocol No. 1 to the Convention that they were deprived of their property in that the administration unlawfully annulled their title deed.
The Court notes that the Kırıkhan Civil Court of General Jurisdiction, before which the applicants initially brought a case claiming compensation, declared that it lacked jurisdiction and transferred the case to the Adana Administrative Court. Nevertheless, the latter also held that it lacked jurisdiction and that the statutory time-limit had already passed when the case was brought before it. Accordingly, the Court finds that domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention, since the applicants did not raise the complaints made to the Court in substance before the domestic courts as they failed to comply with the procedural requirements under the national law.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention, in so far as it concerns the complaint about the length of the proceedings;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos David
Thór Björgvinsson
Deputy
Registrar President
APPENDIX
|
Application no. |
Date of introduction |
Applicant’s name, date of birth and place of residence |
Name of representative |
|
17293/07 |
10/04/2007 |
Ali Göçmen 01/01/1929 Hatay Bektaş Göçmen 01/01/1938 Hatay Yusuf Göçmen 07/06/1945 Hatay Filiz Göçmen 01/01/1943 Hatay
|
H. Geylani |