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SECOND
SECTION
CASE OF OLCAR v. TURKEY
(Application
no. 76096/01)
JUDGMENT
STRASBOURG
20
November 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 Olcar 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,
Mr V. Zagrebelsky,
Mr D. Popović,
judges,
and Mrs F. Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 23
October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 76096/01) 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 a Turkish national, Mr Salih Olcar
(“the applicant”), on 10 September 2001.
- The
applicant was represented by Mr N. Güven, a lawyer practising in
Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
22 August 2005 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
applicant was born in 1964 and lives in Şırnak.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Destruction of the applicant's property and the
determination of damage
- On
11 February 1994 the applicant's stores and goods were burned and
destroyed in the course of an armed clash between members of the
State Security Forces and militants from the PKK (the Workers'
Party of Kurdistan, an illegal organisation), in the Silopi
district of the province of Şırnak.
- On
14 February 1994 the applicant filed a declaratory action before the
Silopi Magistrates' Court for an assessment of the damage he had
suffered as a result of the clash and the fire.
- On
the same day the Silopi Magistrates' Court appointed an expert to
determine the damage.
- On
16 February 1994 the expert submitted a damage assessment report to
the court. The expert noted in his report that his conclusions were
based on the applicant's claims since the receipts for some of the
goods had been burned as a result of the fire.
2. Compensation proceedings before the Administrative
Court
a) First
set of proceedings
- On
26 December 1994 the applicant filed an action with the Diyarbakır
Administrative Court against the Ministry of Interior and requested
compensation for the damage he had suffered.
- On
30 December 1994 the Diyarbakır Administrative Court dismissed
the action on the ground that the applicant had failed to apply to
the Ministry of the Interior with his claim. The court reasoned that,
under Article 13 of Law no. 2577, an action of this kind
could be filed only after the administrative authorities had refused
the litigant's request.
b) Second
set of proceedings
- On
1 February 1995 the Ministry of the Interior received the case file
from the Diyarbakır Administrative Court. The
Ministry did not respond to the applicant's request for compensation
within the 60-day period prescribed by Law no. 2577.
- On
3 April 1995 the applicant filed an action with the
Diyarbakır Administrative Court and requested compensation
for the damage suffered as a result of the destruction of his stores.
- On
7 May 1998 the Diyarbakır Administrative Court awarded the
applicant compensation based on his annual tax return in 1993. It
held that the expert report on the applicant's damage should not be
taken into consideration since the assessment of the damage was based
on the applicant's claims alone.
- On
19 August 1998 the applicant appealed.
- On
10 April 2001 the Supreme Administrative Court quashed the Diyarbakır
Administrative Court's judgment. It held that the lower court had
erred in its assessment of the damage sustained by the applicant as
it had disregarded the damage to the goods in the stores.
- In
a judgment dated 16 June 2005, the Diyarbakır Administrative
Court, complying with the Supreme Administrative Court's ruling,
partially acceded to the applicant's request for compensation. The
applicant appealed against this judgment as well and, according to
the information in the case file, the proceedings are still pending
before the Supreme Administrative Court.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the second set of proceedings
had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention. He
also alleged under Article 13 of the Convention that there were no
effective remedies in domestic law to accelerate the proceedings.
Article
6 § 1 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...”
Article
13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
period to be taken into consideration began on 1 February 1995 and
apparently has not yet ended (paragraph 17 above). It has thus
lasted more than twelve years and eight months before two levels of
jurisdiction.
A. Admissibility
- The
Government contended that the applicant did not complain of the
length of the proceedings at any stage of the trial before the
domestic court. The Court notes that this objection is closely linked
to an examination of the merits of the complaint, thus it joins it to
the merits. It further notes that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention on any other grounds. They 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 applicant and the relevant authorities and what
was at stake for the applicant 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 of 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.
- The applicant further complained of a lack of an
effective domestic remedy to accelerate the proceedings.
- The Government maintained that the applicant could
have brought a compensation action against the judges who conducted
the proceedings for the alleged damage he has suffered as a result of
lengthy proceedings.
- The Court recalls its earlier finding that the Turkish
legal system did not provide an effective remedy whereby the length
of the proceedings could be successfully challenged (see Tendik
and Others v. Turkey, no. 23188/02, §§ 4-39,
22 December 2005). It finds no reason to reach a different conclusion
in the instant case.
- Against this background, the Court dismisses the
Government's objection on non-exhaustion of domestic remedies and
holds that there has been a violation of Articles 6 and 13 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol No. 1 to the
Convention that the amount of compensation which he might be awarded
at the end of the proceedings would be insufficient on account of the
excessive length of the proceedings.
- The
Government contended that the applicant was not entitled to claim a
property right before the proceedings come to an end.
- The
Court reiterates that future income compensation in this
case may not qualify as “possessions” within the
meaning of Article 1 of Protocol No. 1 unless it has been earned or
where an enforceable claim to it exists (see Ian Edgar (Liverpool)
Ltd. v. the United Kingdom (dec.), no. 37683/97,
ECHR 2000-I). In the present case, the applicant has not yet
been awarded any compensation. Thus, there is no enforceable claim
concerning the compensation which might constitute a possession.
- It
follows that this complaint is inadmissible as being manifestly
ill founded within the meaning of 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
applicant submitted that the pecuniary damage he sustained in 1994
was in the amount of 1671,000,000 Turkish liras. He therefore asked
the Court to award him an amount which would correspond to the
current value of his loss. The applicant did not claim non-pecuniary
damage.
- The
Government asked the Court to dismiss the applicant's claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
Furthermore, having regard to the applicant's failure to claim
non-pecuniary damage, the Court makes no award in this respect.
- However,
the Court considers that where the length of proceedings, as in the
instant case, has 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 as quickly as possible, whilst observing the fair
administration of justice, are recognised, in principle, as offering
appropriate redress for the violation.
B. Costs and expenses
- The
applicant did not claim an amount for costs and expenses.
Accordingly, the Court makes no award under this heading.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the excessive
length of the proceedings and lack of effective remedies in domestic
law admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
