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SECOND
SECTION
CASE OF NAİME DOĞAN AND OTHERS v. TURKEY
(Application
no. 76091/01)
JUDGMENT
STRASBOURG
17 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 Naime Doğan and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs A.
Mularoni,
Mrs D. Jočienė, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 76091/01) 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 five Turkish nationals, Ms Naime Doğan, Ms Semray Doğan,
Mr Osman Zeki Doğan, Ms Tülay Doğan and Ms Şenay
Çabuk (“the applicants”), on 6 September 2001.
- The
applicants were represented by the applicant Semray Doğan, who
is a lawyer practising in Bodrum. The Turkish
Government (“the Government”) did not designate an
Agent for the purposes of the proceedings before the Court.
- On
14 September 2006 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
applicants were born in 1919, 1948, 1949, 1953 and 1956 respectively
and live in different cities in Turkey.
- The
applicants’ predecessor, Mr Hasan Fehmi Doğan, was the
owner of a plot of land in Manavgat. On 27 November 1959
he filed an action with the Manavgat Civil Court against certain
third persons, whom he claimed were unlawfully occupying his land. He
requested that the allegedly unlawful interference be halted.
- As
cadastral work by the authorities started in the area in 1965, the
court decided on 16 July 1965 that it no longer had jurisdiction
and transferred the case to a court with special jurisdiction in the
subject, the Land Registry Court (Tapulama Mahkemesi) in
Manavgat.
- The
cadastral work divided the land into six parcels, the ownership of
which was separately disputed between the applicants’
predecessor and the occupiers. In 1967, the Land Registry Court
joined all six cases.
- Throughout
the proceedings, the applicants’ predecessor on the one hand
maintained that the new plots corresponded to the single piece of
land already registered in his name. The defendants, on the other
hand, claimed that the land records could not possibly relate to
those plots as they had purchased the whole piece of land in dispute
from its previous, lawful owner.
- On
27 March 1987 the Land Registry Court ruled in favour of the
applicants’ predecessor and ordered the six parcels to be
registered in his name.
- On
25 October 1988, however, the Court of Cassation quashed this
judgment on the grounds that there had been an insufficient factual
examination of the case.
- On
27 June 1989 the Land Registry Court resumed the proceedings. On 31
July 1990 it decided to abide by the Court of Cassation’s
decision. Accordingly, it conducted a broader factual examination.
- Notwithstanding
that decision, the same court held a hearing on 9 October 1990
and scheduled a new hearing to decide (apparently for a second time)
whether or not to abide by the Court of Cassation’s ruling.
- At
the next hearing held on 4 December 1990, the Land Registry Court
gave a fresh decision to abide by the Court of Cassation’s
ruling.
- Between
3 September 1991 and 17 July 2002 hearings were held every two to
three months. However, several hearings were presided over by
different judges.
- At
the hearing on 3 September 1991, the court decided to conduct an
on-site inspection (keşif) on 11 November 1991.
- On
17 March 1992 a new judge was appointed to the court for the second
time in four months. As he was unfamiliar with the case, he postponed
the inspection. Until the end of 1992, the judge sitting on the bench
of the court was changed three more times and the hearings were
mainly devoted to the new judges’ gaining familiarity with the
dispute.
- Despite
the fact that the court scheduled an on-site inspection several
times, it was deferred for various reasons, including the lack of the
necessary court stamps in the court’s registry to notify
experts and witnesses, the parties’ failure to pay certain
fees, the applicants’ failure to bring their witnesses to the
inspection site, the parties’ mutual failure to attend the
inspection, the judge’s annual leave, the lack of pertinent
witnesses, unsuitable weather conditions, the ailing condition of a
local witness, the court’s search for suitable new witnesses,
the court’s shortage of time due to its hearing backlog and,
finally, the defendants’ disorderly behaviour and contempt of
court. Throughout this process, the judge presiding over the case was
again changed at least four times.
- The
re-scheduled on-site inspection was eventually conducted on
24 September 1998.
- At
the hearing on 29 December 1998, the parties submitted their final
observations. From that date until 17 July 2002, the court held a
total of fifteen hearings. At the hearing held on that last date, the
Land Registry Court dismissed the applicants’ request.
- On
11 November 2002 the applicants appealed. The Court of Cassation held
a hearing on 12 July 2005.
- On
26 December 2006 the Court of Cassation upheld the Land Registry
Court’s judgment.
- On
26 March 2007 the applicant filed a petition with the Land Registry
Court in Manavgat, to be submitted to the Court of Cassation, and
requested the rectification of the decision dated 26 December 2006 on
the ground that the latter court had rendered a decision which lacked
legal and procedural reasoning. According to the applicant’s
letter dated 25 June 2007, the proceedings are still pending before
the Court of Cassation.
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, 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 only began on 28 January 1987,
when the recognition by Turkey of the right of individual petition
took effect. According to the information available in the case file,
the case is still pending because the final decision, as of 13
February 2007, had not been notified to the applicants. By that date,
it had already lasted more than twenty years before two levels of
jurisdiction. However, in assessing the reasonableness of the time
which has elapsed since 1987, account must be taken of the state of
proceedings at that point. In this connection, the Court notes that
the case had been pending before the domestic courts since 1959, an
additional twenty-eight years prior to the aforementioned recognition
of the right of individual petition.
A. Admissibility
- The
Court notes that the application 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 convincing 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. 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 557,000 euros (EUR) in respect of pecuniary damage
and EUR 35,000 for non-pecuniary damage.
- The
Government submitted that these claims were excessive and
unsubstantiated.
- 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 some
non pecuniary damage. Ruling on an equitable basis, it awards
award them, jointly, EUR 18,000 under that head.
- Furthermore,
the Court considers that where the length of proceedings, as in the
instant case, have been excessive and in contravention of the
“reasonable time” requirement under Article 6 § 1 of
the Convention, the subsequent expedition and resolution of those
proceedings within the shortest possible period of time are
recognised, in principle, as offering appropriate redress for the
violation.
B. Costs and expenses
- The
applicants also claimed EUR 5,000 for the costs and expenses incurred
before the Court.
- The
Government maintained that no award should be made under this head
since the applicants failed to substantiate their claims with
supporting documents.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the applicants, jointly, the sum of
EUR 1,000 for the costs and expenses incurred in the course of the
proceedings before the Court.
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 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 applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following sums, to be converted into new Turkish liras at the
rate applicable at the date of settlement:
(i) EUR 18,000 (eighteen thousand euros) in respect of non pecuniary
damage,
(ii) EUR 1,000 (one thousand euros) for costs and expenses,
(iii) plus any tax that may be chargeable;
(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;
4. Dismisses unanimously the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
