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SECOND
SECTION
CASE OF YAVUZDOĞAN v. TURKEY
(Application
no. 8472/07)
JUDGMENT
STRASBOURG
31 January 2012
This judgment is final but it
may be subject to editorial revision.
In the case of Yavuzdoğan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8472/07) 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 Duran Yavuzdoğan (the applicant) on 12
February 2007.
- On
25 May 2010 the Court was informed of his death on 20 May 2009
and that his successors, Ms Döndü Yavuzdoğan,
Ms Ayşe Yavuzdoğan,
Ms Tülay Arslan (Yavuzdoğan),
Mr Erkan Yavuzdoğan, Ms Şenay Yavuzdoğan
and Mr Seyit Yavuzdoğan, stated their wish
to pursue the application. For practical
reasons, Mr Duran Yavuzoğlu will continue to be called “the
applicant”, although his successors are now to be regarded as
such (see Dalban v. Romania
[GC], no. 28114/95, § 1, ECHR 1999-VI, and also Ahmet
Sadık v. Greece, 15 November
1996, § 3, Reports of Judgments
and Decisions 1996 V ).
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
4 September 2009 the
President of the Second Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lived in Eskişehir.
- On
13 October 2000 the Turkish State Railways brought compensation
proceedings against the applicant before the Eskişehir Civil
Court of First Instance for the unlawful occupation of its property.
Within the same proceedings the administration also requested that
unlawful occupation of the building on the property to be stopped as
well as the demolition of it.
- On
21 June 2005 the court partially granted the administration's request
and ordered the applicant to pay the plaintiff the principal amount
of TRL 1,374,000,000
and plus TRL 787,205,000
as interest. It also decided that the building on the property be
demolished.
- On
22 February 2006 the Court of Cassation upheld the judgment of
21 June 2005.
- On
5 October 2006 the Court of Cassation dismissed a request by the
applicant for rectification of the judgment.
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 that argument claiming
that the impugned proceedings could not be considered to have been
excessively long in view of the complexity of the case. They
concluded therefore that there had been no delay in the proceedings
that may be attributable to the State.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- The
period to be taken into consideration began on 13 October 2000 and
ended on 5 October 2006.
It has thus lasted approximately six years for two levels of
jurisdiction.
- 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 (see
Frydlender v. France [GC], no. 30979/96, §§
42-46, ECHR 2000 VII, and Daneshpayeh v. Turkey,
no. 21086/04, §§ 26-29, 16 July 2009).
There
has accordingly been a breach of Article 6 § 1
II. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
- Without
invoking any particular Article of the Convention, the applicant
complained that his right to life, his right to liberty and security
and the prohibition of discrimination had been breached on account of
the proceedings brought against him.
- In
the light of all the material in its possession, the Court finds that
the above submissions by the applicant do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that these complaints must be declared
inadmissible as being manifestly ill-founded, 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
- On
behalf of the applicant, his successors claimed 100,000 euros
(EUR) in respect of pecuniary damage. They also claimed EUR 20,000
in respect of non-pecuniary damage for the distressed caused due to
the events which gave rise to instant proceedings.
- The
Government contested these claims as being excessive.
- 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, it awards the applicant's successors jointly
EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant's successors also claimed EUR 10,000 for the costs and
expenses incurred before the domestic courts. They could not submit
documentary evidence in support of their claims stating that they had
lost the receipts in the meantime.
- The
Government contested the claim.
- The
Court reiterates that an applicant is entitled to the 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. The Court considers that the applicants have not
substantiated that they have actually incurred the costs claimed. In
particular, they failed to submit documentary evidence, such as
bills, receipts, a contract, a fee agreement or a breakdown of the
hours spent by their lawyer on the case. Accordingly, the Court makes
no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 to the applicant's successors,
Ms Döndü Yavuzdoğan, Ms Ayşe Yavuzdoğan,
Ms Tülay Arslan (Yavuzdoğan), Mr Erkan Yavuzdoğan, Ms
Şenay Yavuzdoğan and Mr Seyit Yavuzdoğan jointly,
within three months, EUR 3,000 (three thousand euros), to be
converted into Turkish liras at the rate applicable at the date of
settlement, plus any tax that may be chargeable to the applicants, in
respect of non-pecuniary damage;
(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 claim for just
satisfaction.
Done in English, and notified in writing on 31 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub Popović
Deputy
Registrar President
