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SECOND
SECTION
CASE OF MUSTAFA AÇIKGÖZ v. TURKEY
(Application
no. 34588/03)
JUDGMENT
STRASBOURG
9
December 2008
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 Mustafa Açıkgöz v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34588/03) 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 Mustafa
Açıkgöz
(“the applicant”), on 31 July 2003.
- The
applicant was represented by Mr E. Sansal, a lawyer practising in
Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- On
20 November 2007 the
Court decided to give notice of the application to the Government. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
- The
applicant was born in 1958 and lives in Ankara.
- The
applicant is the owner and director of a construction company
registered in Turkey, the Mustafa Açıkgöz
Construction Company Limited.
- On
26 April 1993 the applicant concluded a contract with S.K. and F.Ö.,
in which the applicant undertook to construct a building, comprising
flats and shops, on a plot of land in Beypazarı belonging to
S.K. and F.Ö. The owners were to transfer the ownership of the
plot to the applicant and, on completion of the construction, the
applicant was to transfer the ownership of six flats to S.K. and F.Ö.
According to the contract, S.K. and F.Ö. were to have three
flats each, two of which would be well lit by daylight.
- On
7 March 1994 S.K. brought a case against the applicant before the
Beypazarı Civil Court, claiming that the applicant had
constructed the building but had failed to transfer the ownership of
the flats to her. S.K. requested that flats nos. 8, 15 and 18 be
registered in her name.
- Twenty-eight
hearings were held between 8 April 1994 and 1 May 1997. During the
same interval five expert reports were submitted to the court either
as to the division of flats and sections of the building or as to the
luminosity of the flats.
- On
1 May 1997 the Beypazarı Civil Court granted S.K.'s request.
- On
3 December 1997 the Court of Cassation quashed the judgment of 1 May
1997, holding that the first-instance court had failed to assess the
provisions of the contract between the applicant and S.K. correctly
and, as a result, had designated the wrong flats. The Court of
Cassation considered that the expression “well lit flats”
contained in the contract should have been interpreted as meaning
flats on the south side of the building.
- The
applicant requested revision of the Court of Cassation's decision.
- On
18 May 1998 the revision request was dismissed.
- The
case was subsequently remitted to the first-instance court.
- Two
hearings were held between 18 May 1998 and 24 September 1998.
- On
18 September 1998 an expert report was submitted to the court
indicating that the sunnier flats were nos. 11, 14, 17 and 20.
- On
24 September 1998 the Beypazarı Civil Court decided that S.K.
should be registered as the owner of sections nos. 5, 6 and 8 (whose
size was equal to that of a flat), as well as flats nos. 17 and 20.
- On
7 April 1999 the Court of Cassation again quashed the first instance
court's judgment. It considered that the applicant had incurred
unjustified loss as a result of that decision.
- The
claimant requested review of the Court of Cassation's decision.
- On
2 December 1999 the review request was dismissed.
- The
case was subsequently remitted to the first-instance court.
- Six
hearings were held between 2 December 1999 and 9 October 2000.
- On
26 May 2000 an expert report was submitted to the court.
- On
9 October 2000 the Beypazarı Civil Court decided that S.K.
should be registered as the owner of sections nos. 1, 3, 5 and 6
(whose total surface was less than that of flats nos. 5, 6 and 8), as
well as flats nos. 17 and 20.
- On
30 April 2001 the Court of Cassation upheld the judgment of 9 October
2000.
- The
applicant requested review of the Court of Cassation's decision.
- On
8 October 2001 the Court of Cassation granted the applicant's
request, annulled its decision of 30 April 2001 and quashed the
judgment of 9 October 2000. The Court of Cassation noted that the
first-instance court had requested experts to draw up a report and to
make proposals as to the division of the flats and sections of the
building, and that on 26 May 2000 the experts had submitted a report
containing seven proposals. It observed that the court had failed to
give the applicant an opportunity to express his preference regarding
these proposals. Instead it selected the first one of its own motion,
which had had a detrimental outcome for the applicant. The case was
subsequently remitted to the first instance court.
- Four
hearings were held between 8 October 2001 and 8 July 2002.
- At
the hearing of 11 March 2002, the Beypazarı Civil Court
requested the applicant to state his preferred expert proposal, but
he failed to respond within the set time-limit.
- On
8 July 2002 the Beypazarı Civil Court gave judgment and ordered
that S.K. be registered in the land register as the owner of sections
nos. 2, 3, 4 and 5, as well as flats nos. 17 and 20.
- On
21 April 2003 the Court of Cassation upheld the judgment of 8 July
2002.
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...”
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
Government submitted that the length of the proceedings had not
exceeded the reasonable time requirement. They argued that the
applicant's case had been complex. They further stated that the
conduct of the parties had contributed to the length of the
proceedings since they had refused to compromise throughout.
- The
applicant maintained his allegations.
- The
period to be taken into consideration began on 7 March 1994 and ended
on 21 April 2003 when the Court of Cassation upheld the last judgment
of the Beypazarı Civil Court. It thus lasted nearly nine years
and one month for three levels of jurisdiction with several
remittals.
- 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 considers that the subject matter of the litigation, namely the
interpretation of the contract between the applicant and S.K, was not
particularly complex.
- As
regards the conduct of the applicant, the Court observes that,
although the applicant may have contributed to some extent to the
delay in the proceedings by his conduct, for example by failing to
respond the request of the court as to his preferred expert proposal
within the set time-limit, this cannot justify the overall length of
the proceedings (see Türkoğlu v. Turkey, no.
58922/00, § 38, 8 August 2006).
- As regards the conduct of the relevant authorities,
the Court observes that Beypazarı Civil Court delivered four
judgments, while the Court of Cassation delivered seven decisions. In
total, eleven decisions were delivered in nine years. The delay was
caused mainly by the re-examination of the case. With regard to the
repeated quashing of the lower court's judgments, the Court recalls
that since the remittal of cases for re examination is usually
ordered as a result of errors committed by the lower authorities, the
repetition of such orders within one set of proceedings discloses
a deficiency in the operation of the legal system (see, mutatis
mutandis, Wierciszewska v. Poland, no. 41431/98, §
46, 25 November 2003).
- Having
regard to the above, the Court considers that in the instant case the
length of proceedings was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION
- The
applicant complained that the excessive length of the proceedings had
infringed his right to the peaceful enjoyment of his possessions, as
guaranteed by Article 1 of Protocol No. 1.
- The
Government argued that the applicant did not have the possession of
the disputed flats. They maintained that Article 1 of Protocol No. 1.
to the Convention was not applicable.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- However,
having regard to its finding under Article 6 § 1 (see paragraph
41 above), the Court considers that it is not necessary to examine
separately whether, in this case, there has been a violation of
Article 1 of Protocol No. 1 (see Öztunç v. Turkey,
no. 74039/01, §32, 27 March 2007, and Zanghì v. Italy,
19 February 1991, § 23, Series A no. 194-C).
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 claimed 3,000,000 euros (EUR) in respect of pecuniary and
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.
However, deciding on an equitable basis, it awards the applicant EUR
3,600 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim for costs and expenses.
- The
Court thus considers that there is no cause to make any award 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is unnecessary to examine
separately the complaint under Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400 (two
thousand four hundred euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into the
national currency of the respondent Government, at the rate
applicable at the date of settlement;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
