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SECOND
SECTION
CASE OF BUHUR v. TURKEY
(Application
no. 24869/05)
JUDGMENT
STRASBOURG
20
July 2010
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 Buhur v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24869/05) 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 Mehmet
Buhur (“the applicant”), on 9 June 2005.
- The
applicant was represented by Mr S. Güzel, a lawyer practising in
Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- On
30 January 2009 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Diyarbakır.
- On
4 September 1997 the applicant brought an action before the
Diyarbakır Civil Court of First Instance against the National
Water Board for compensation for the damage suffered due to a flood.
- On
12 February 1998 the Diyarbakır Civil Court of First Instance
issued a decision of non-jurisdiction.
- On
25 May 1998 the applicant lodged a case with the Diyarbakır
Administrative Court against the National Water Board for
compensation.
- On
12 May 2000 that court dismissed the case.
- On
5 December 2001 the Supreme Administrative Court upheld the judgment
of 12 May 2000.
- On
14 March 2005 the Supreme Administrative Court dismissed the
applicant's rectification request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Admissibility
- The
Court observes that, initially having lodged his claim for damages
before non-competent civil court, the applicant then initiated
proceedings before the competent administrative court in compliance
with the domestic law. According to Section 193 of the Code
of Civil Procedure, non-competent
civil courts in Turkish law do not ex
officio refer the case to competent
administrative courts. The complainant may appeal against the
decision of the civil court and subsequently choose to initiate new
proceedings before the competent courts. Given that the initiative to
introduce new proceedings rested with the applicant, the
Court considers that the two sets of proceedings should be examined
separately (see, Çakmak and Others v. Turkey,
no. 53672/00, § 30, 25 January 2005; mutatis
mutandis, Rezgui v. France (dec.), no. 49859/99,
7 November 2000). In this connection, the Court observes that
the proceedings before the Diyarbakır
Civil Court of First Instance ended on 12 February 1998.
The present application was introduced on 9 June 2005. The Court
finds, therefore, that this part of the applicant's complaint has
been lodged outside the six-month time-limit and must be rejected
pursuant to Article 35 §§ 1 and 4 of the Convention.
- The
Court concludes that the complaint concerning the length of
proceedings before the Diyarbakır Administrative Court 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
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention. The Government
contested that argument.
- The
period to be taken into consideration began on 25 May 1998, when
the applicant lodged the action with the Diyarbakır
Administrative Court, and ended on 14 March 2005 when the Supreme
Administrative Court dismissed the applicant's rectification request.
It thus lasted six years and nine months for two levels of
jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases disclosing comparable lengthy periods before the
Supreme Administrative Court (see, for example, Hayrettin Kartal
v. Turkey, no. 4520/02, § 20, 20 October 2005; Narin
v. Turkey, no. 18907/02, §
60, 15 December 2009, and Karakullukçu v. Turkey,
no. 49275/99, § 36, 22 November 2005). Having regard to the
overall length of the proceedings, the Court finds no
reason to reach a different conclusion in the instant case.
- In
view of the above, the Court finds that the overall length of the
proceedings in the present case 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
applicant complained under Article 1 of Protocol No. 1 of the
Convention that his right to the peaceful enjoyment of his
possessions had been infringed as the court failed to assess the
facts of the case correctly while dismissing his compensation
request.
- The
Court notes that this complaint essentially concerns the
interpretation of the domestic jurisprudence by the national courts
and therefore it should be examined under Article 6 § 1 of the
Convention (see Namlı v. Turkey (dec.), no
51963/99, 8 March 2005).
- Having
regard to the material in the case file, the Court considers that
there is nothing to suggest that the decision reached by the domestic
courts was manifestly unreasonable or in any way arbitrary to such an
extent as to call into question the adequacy of that court's
consideration of the case before it (see García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
- It
follows that this part of the application must be rejected 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 claimed 250,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 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.
However, deciding on an equitable basis, it awards the applicant EUR
3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,100 for the legal fees, costs and
expenses incurred before the Court. In support of his claims, the
applicant submitted a time sheet prepared by his legal
representative. The Government contested these claims.
- According
to the Court's case-law, 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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award the applicant EUR 500 in respect of
costs and expenses.
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 applicant, 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 Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
