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THIRD
SECTION
CASE OF MÜSLÜOĞLU AND OTHERS v. TURKEY
(Application
no. 50948/99)
JUDGMENT
STRASBOURG
14 June
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 Müslüoğlu and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mrs I.
Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S.
Quesada, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 50948/99) 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 six Turkish nationals, Ms Jale Müslüoğlu,
Mr Hüseyin Üçpınar, Ms Makbule Tireli, Mr
Sabih Üçpınar, Mr Enver Öztürk and Mr
Enver Kemal Üçpınar (“the applicants”),
on 20 July 1999.
- The
applicants were represented by Ms H. Üçpınar, a
lawyer practising in Izmir. The Turkish Government
(“the Government”) did not designate an Agent for the
purposes of the proceedings before the Court.
- On
9 March 2006 the Court
decided to strike the application out of its list of cases in respect
of Mr Enver Kemal Üçpınar and to communicate the
application in respect of the remaining five applicants. 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 1929, 1931, 1927, 1935 and 1940 respectively.
The first applicant resides in Ankara, the second, third and fourth
applicants reside in Muğla and the last applicant resides in
Denizli.
- The
applicants are the owners of a plot of land of 330,000 square metres
(plot no. 1416), in the district of Milas, in Muğla.
- On
14 October 1978 the land was officially designated as a first degree
conservation area (birinci derece sit alanı) by
the High Committee of Ancient Buildings and Monuments attached to the
Ministry of Culture, following the discovery of the ruins of an
ancient city, Bargylia, in the region. Subsequently,
construction of buildings in this area was prohibited pursuant to the
Law on Ancient Buildings (Law no. 1710).
- On
24 June 1987 and 8 February 1990, Law no. 3386 and Regulations
no. 20427 came into force respectively. According to the Law and
the Regulations, lands designated as conservation areas could be
exchanged for lands owned by the Treasury.
- On
17 July 1987 the applicants applied to the Ministry of Culture and
Tourism and requested that their land be exchanged for two plots of
land in Muğla which belonged to the Treasury.
- On
2 May 1988 their request was dismissed as one of the plots that the
applicants requested was unavailable for exchange.
- In
1990, 1993, 1995 and 1997 Jale Müslüoğlu filed several
petitions with the Ministry, on behalf of the owners of plot no. 1416
and requested that their land be exchanged for land belonging to the
Treasury. No action was taken by the authorities until 1997.
- On
11 November 1997 the applicants concluded an agreement with the
authorities and plot no. 1416 was exchanged for several plots of land
owned by the Treasury. However, the agreement was not approved by the
Minister of Finance.
- On
10 July 1998 Jale Müslüoğlu filed a petition with the
Ministry of Finance. However, she received no reply to her petition.
- On
3 November 1998 the applicants filed an action before the Ankara
Administrative Court. They alleged that the failure of the Ministry
to approve the agreement of 11 November 1997 meant disapproval and
requested the annulment of that decision.
- On
8 February 1999 the Ankara Administrative Court issued a decision of
lack of territorial jurisdiction and sent the case-file to the
Aydın Administrative Court.
- On
27 September 2000 the Aydın Administrative Court dismissed the
applicants' case. The court noted that, according to the
Regulations no. 20427, the plots belonging to the Treasury
which were to be exchanged for should be located within the borders
of the same district as the individuals' plots. It further noted that
the three plots of land which were to be exchanged for the
applicants' land were located in another district of the Muğla
province and, therefore, considered that the Ministry's decision not
to approve the agreement had been lawful.
- On
25 April 2002 the Supreme Administrative Court quashed the judgment
of the first-instance court. It noted that the Regulations no. 20427
had been amended on 19 February 1992 and that, according to the
amended text, the plots belonging to the Treasury which were to be
exchanged for should be located within the borders of the same
province.
- On
3 October 2002, the case-file was sent to the Muğla
Administrative Court since, in the meantime, an administrative court
was established in this province.
- On
18 July 2003 the Muğla Administrative Court abided by the
decision of the Supreme Administrative Court and held that the
decision of the Ministry had been unlawful.
- The
Ministry of Finance appealed. On 24 February 2006 the Supreme
Administrative Court quashed the decision of the first-instance
court.
- The
case was once again transmitted before the Muğla Administrative
Court where the proceedings are still pending.
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 allegation.
- The
period to be taken into consideration began on 3 November 1998
and has not yet ended. It has thus already lasted for more than eight
years.
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
case (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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicants complained under Article 1 of Protocol No. 1 to the
Convention that the administration took effective possession of their
land without paying compensation and that the authorities failed to
respect the fair balance that had to be struck between the protection
of property and the requirements of the general interest.
- In
their observations, the Government raised two preliminary objections.
They maintained in the first place that the Court lacked jurisdiction
ratione temporis as the land in question had been declared a
first degree conservation area in 1978, while Turkey had recognised
the competence of the Convention organs to examine individual
petitions as of 28 January 1987. Secondly, the Government asked the
Court to dismiss the complaint for failure to comply with the
six-month time-limit. In this respect, they stated that the
applicants should have filed their application with the Court within
six months after 2 May 1988, the date on which the Ministry of
Culture and Tourism had rejected their request to make an exchange
for their land.
30
The Court does not consider it necessary to decide on the
Government's preliminary objections since this complaint should in
any case be declared inadmissible for the following reason.
- It
is observed that, pursuant to Law No. 3386 dated 24 June 1987 and
Regulations No. 20427 dated 8 February 1990, the applicants requested
the domestic authorities that their land be exchanged for land
belonging to the Treasury. The Court notes that the domestic
proceedings to resolve this dispute are still pending before the
Muğla Administrative Court. Accordingly, this part of the
application is premature. The Court recalls that after the final
ruling is given in the case, it is open to the applicants to
re-submit their complaint with the Court if they still consider
themselves victims of the alleged violation.
- In
view of the above, this complaint should be rejected for
non-exhaustion of domestic remedies within the meaning of Article 35
§§ 1 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 14,005,464 euros (EUR) in respect of pecuniary
damage and EUR 45,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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, the Court accepts that the applicants must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Having
regard to its case-law and making its assessment on an equitable
basis, the Court awards the applicants jointly a total sum of EUR 900
under this head.
B. Costs and expenses
- The
applicants also claimed EUR 11,854 for the costs and expenses
incurred before the Court.
- The
Government contested the applicants' claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 sum of EUR 500 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 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 amounts to be converted into New Turkish liras at the
rate applicable at the date of settlement and free of any taxes or
charges that may be payable:
(i) EUR
900 (nine hundred euros) in respect of non-pecuniary damage,
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
