[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF MERTER AND OTHERS v. TURKEY
(Application
no. 2249/03)
JUDGMENT
STRASBOURG
23 March 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 Merter and Others
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 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2249/03) 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 Mr Mehmet Rauf Merter, Mr Ahmet Attila Merter,
Mr Nesip Mustafa Merter and Mr Mehmet Berke Merter, who are
Turkish nationals, as well as Mrs Karen Ingrit Merter, who is a
German national (“the applicants”) on 16 November 2002.
- The
applicants were represented by Mr S. Akdağ, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicants alleged that the national authorities had denied them a
fair hearing within a reasonable time and had interfered with their
right to the peaceful enjoyment of their possessions. They invoked
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
- On
20 September 2005 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaint concerning the length of the proceedings and alleged
interference with the applicants' right to the peaceful enjoyment of
their possessions. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first and second applicants were born in 1930 and 1953. The remaining
applicants did not inform the Court of their dates of birth. They all
live in Istanbul.
- On
16 May 1951 the owner of the neighbouring plot of land (“the
neighbour”) brought an action in the Istanbul Civil Court of
First Instance against the applicants' ancestor, Ahmet Muhtar Merter,
claiming that the actual area of his land exceeded the amount
indicated in the land registry records. He further claimed that,
since the actual boundaries were not clear between his and the
neighbouring plot of land, the applicants' ancestor was interfering
with his use of the property (men-i müdahale davası).
He therefore requested the court to resolve this dispute by
determining the correct boundaries between the plots of land and
ordering the accurate registration thereof.
1. The Cadastral Commission's land survey of 10 October
1954
- On
10 October 1954, as a result of the construction of a road passing
through the land in question, the Cadastral Commission carried out a
land survey in Bakırköy. The records concerning the plot in
question were amended as a result of this exercise. Following this
amendment, the plot in question was divided into nine different
parts, namely, plots nos. 110, 113, 114, 115, 116, 117, 118, 119 and
168. Plot no. 113 was allocated as meadowland and registered in the
name of the Treasury. It was decided that plots nos. 115, 116, 119
and 168 should be entered in the land register in the name of the
applicants' ancestor and plots nos. 110, 114, 117 and 118 in the name
of the neighbour. No dispute arose with regard to plot no. 168,
therefore this allocation became final and the plot in question was
registered in the name of the applicants' ancestor.
2. The Istanbul Civil Court of First Instance's
decision of non-jurisdiction
- By
a decision of 10 November 1954, following the above registration
process and the establishment of the Cadastral Courts, the Istanbul
Civil Court of First Instance issued a decision of non-jurisdiction
and transferred this lawsuit to the Bakırköy Cadastral
Court. This decision was upheld by the Court of Cassation on 15 July
1955.
3. The death of the applicants' ancestor, Ahmet Muhtar
Merter
- By
a decision of 5 February 1959, the Bakırköy Magistrate's
Court designated Mehmet Rauf Merter and Hasan Tahsin as the heirs
(“the heirs”) of Ahmet Muhtar Merter following his death.
4. The Bakırköy Cadastral Court's judgment of
23 July 1960
- On
23 July 1960 the Bakırköy Cadastral Court decided that
plots nos. 115, 116 and 119 should be registered in the names of
the heirs, plots nos. 113 and 118 in the name of the Treasury,
and plots nos. 110, 114 and 117 in the name of the neighbour. On
13 March 1961 the Court of Cassation quashed this judgment and
remitted the case to the Bakırköy Cadastral Court.
- In
1967 the Treasury, the Municipality of Istanbul and the heirs of four
other persons intervened in the proceedings. Relying on the Ottoman
land registry records (temessük kayıtları),
they claimed ownership rights over the plots in question.
- On
17 July 1970 the second applicant, Ahmet Attila Merter, also
intervened in the proceedings before the Bakırköy Cadastral
Court as a testamentary heir.
4. The Bakırköy Cadastral Court's judgment of
9 May 1988
- On
9 May 1988 the Bakırköy Cadastral Court decided that plots
nos. 115 and 119 should be registered in the names of the
applicants (as heirs of Ahmet Muhtar Merter) and plots nos. 113 and
118 in the names of the Municipality of Istanbul and the Treasury
respectively. The court also held that plots nos. 110, 114, 116 and
117 should be registered in the names of the heirs of the neighbour.
The court further allowed the request to intervene by the heirs of
Ahmet Kethüda who stated that their ancestor had partially
maintained the last-mentioned plots in his possession before the
proceedings had begun. The total number of parties to the proceedings
increased to forty-eight.
5. The Court of Cassation's judgment of 6 March 1990
- On
6 March 1990 the Court of Cassation quashed the judgment of 9 May
1988 for non-compliance with the procedure for the announcement of
the judgment. It further considered that the examination conducted by
the first-instance court was insufficient and that the court should
have considered the de facto possession of these plots
of land.
6. The Bakırköy Cadastral Court's judgment of
23 December 1992
- On
23 December 1992, having conducted a land survey and with reference
to an expert report, the Bakırköy Cadastral Court set aside
its decision concerning the registration of plots nos. 115 and 119 in
the names of the applicants. Following its examination of the Ottoman
land registry records (temessük kayıtları), the
court ruled that the aforementioned plots should be registered in the
names of the heirs of Hacıahmet, son of Mehmet, and that plots
nos. 113 and 118 should be registered in the names of the
Municipality of Istanbul and the Treasury respectively. The court
also held that plots nos. 110, 114 and 117 should be registered in
the names of the heirs of the neighbour.
- It
is to be noted that this judgment was not served on the first
applicant, Mehmet Rauf Merter, but on his legal representative, who
had died in 1989 (see paragraphs 23-26 below).
7. The Court of Cassation's judgment of 8 February 1994
- In
a decision dated 8 February 1994 the Court of Cassation upheld the
above judgment in part and quashed the remainder. It reasoned that
the examination conducted by the Court of First Instance had been
insufficient because it had given judgment despite contradictory
expert reports and witness statements. It further reasoned that the
court had also failed to verify whether some of the documentary
evidence was genuine. The Court of Cassation held in particular that
the Court of First Instance had erred in its finding concerning the
registration of plots nos. 115 and 119. However, it upheld the
judgment of 23 December 1992 with regard to plots nos. 110, 113,
114, 116, 117 and 118. It further dismissed a rectification request
by the parties on 26 January 1995. Thus, while the judgment became
final in respect of the aforementioned plots, the dispute continued
as regards plots nos. 115 and 119.
8. The Bakırköy Cadastral Court's judgment of
7 May 1996
- On
7 May 1996 the Bakırköy Cadastral Court, relying on the
Ottoman land registry records, decided that 50% of plots nos. 115
and 119 should be registered in the names of the heirs of Mehmet
Hidayet and the remaining 50% in the name of Mehmet Oral, who had
purchased part of the plots from Mehmet Hidayet. The court further
noted that the heirs of Ahmet Muhtar Merter (the applicants'
ancestor) had failed to prove their possession of the plots for
twenty years.
- It
is to be noted that the first applicant, Mehmet Rauf Merter, was not
a party to the above proceedings, although the remaining four
applicants, as heirs of Ahmet Muhtar Merter, were noted as litigants
in the court's above-mentioned judgment.
- On
4 February 1997 the Court of Cassation dismissed an appeal lodged by
the heirs of the neighbour, the Municipality of Istanbul and the
Treasury against the above decision. It also rejected a rectification
request by the appellants on 30 September 1997. The judgment of 7 May
1996 thus became final.
9. The Bakırköy Cadastral Court's judgment of
27 May 1998
- On
30 December 1997 the applicants brought an action in the Bakırköy
Cadastral Court asking for the proceedings to be reopened (iade-i
muhakeme) on the basis of newly discovered documentary evidence.
They claimed that plots nos. 115 and 119 should be registered in
their names.
- On
27 May 1998 the Bakırköy Cadastral Court rejected the
applicants' request to reopen the proceedings. The Court of Cassation
upheld this judgment on 8 May 2000.
10. The Bakırköy Cadastral Court's decision
of 2 February 1999
- On
1 February 1999 the first applicant applied to the Bakırköy
Cadastral Court claiming that the judgment of 23 December 1992 had
been served on his legal representative who had died in 1989 and that
he had not been able to learn of it in time to appeal within the
statutory time-limit. He therefore asked the court to serve the said
judgment on him and to grant him leave to appeal.
- On
2 February 1999 the court dismissed the first applicant's requests on
the grounds that the judgment in question had been communicated to
the parties and had already been enforced. The first applicant
appealed.
11. The Court of Cassation's judgment of 13 June 2000
- On
13 June 2000 the Court of Cassation quashed the Bakırköy
Cadastral Court's judgment of 2 February 1999 on the ground that the
case file did not contain any information or document indicating that
the judgment in question had been duly served on the first applicant.
It therefore granted the first applicant leave to appeal but, after
re-examining the case, dismissed his appeal.
- On
31 May 2002 the Court of Cassation dismissed the first applicant's
request for rectification of its decision of 13 June 2000.
12. Recent developments
- According
to the information given by the Government, on 30 September 2002
the applicants brought a new action in the Bakırköy
Cadastral Court asking for the proceedings to be reopened. The
applicants' action was communicated to the parties (forty-eight
persons) and the proceedings are still pending.
- Meanwhile,
on an unspecified date, the applicants filed another action with the
Bakırköy Court of First Instance claiming compensation from
the Bakırköy Land Registry Office (tapu sicil
müdürlüğü). The applicants alleged that
they had sustained damage on account of the negligence and mistakes
made by the defendant in keeping the land registry records. These
proceedings were suspended pending the outcome of the proceedings
before the Bakırköy Cadastral Court.
- It
is to be noted that the applicants did not provide any information or
raise any complaints about the proceedings pending before the
Bakırköy Cadastral Court and the Bakırköy Court
of First Instance.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Non-exhaustion of domestic remedies
- The
Government submitted that the applicants had failed to exhaust all
domestic remedies, within the meaning of Article 35 § 1 of the
Convention, since the domestic proceedings (action for damages and
the reopening of the proceedings) were still pending before the
national courts (see paragraphs 27 and 28 above).
- The
applicants claimed that the subject matter of the present application
was the decisions given by the Cadastral Commission and the Bakırköy
Cadastral Court which had deprived them of their right to the
peaceful enjoyment of their property. Accordingly, the proceedings
which they had brought for damages and the reopening of the
proceedings were different from the proceedings that had ended with
the decision of 31 May 2002 of the Court of Cassation.
- The
Court reiterates that the obligation to exhaust domestic remedies
only requires that an applicant make normal use of effective and
sufficient remedies; that is, those capable of remedying the
situation at issue and affording redress for the breaches alleged.
- In
the instant case, the applicants complained about the national
authorities' finding that they had no rights over plots nos. 115 and
119 (see paragraph 18 and 20 above). Thus, the proceedings
referred to by the Government do not pertain to the dispute in issue,
namely, the action for damages pending before the Bakırköy
Court of First Instance aimed at obtaining compensation from the
authorities for their alleged negligence in the keeping of land
registry records. In addition, the action brought in the Bakırköy
Cadastral Court, namely the request for the reopening of the
proceedings, is an extraordinary remedy which need not have been
exhausted by the applicants.
- In
view of the foregoing, the Court considers that the applicants can be
considered to have exhausted all remedies in domestic law. It
therefore rejects this aspect of the Government's preliminary
objections.
B. Alleged failure to observe the six-month rule
- The
Government further contended that the applicants had failed to comply
with the six-month rule, laid down in Article 35 § 1 of the
Convention, in respect of their complaints. They asserted that the
applicants had not filed their application within six months of the
Court of Cassation's decision of 30 September 1997. This was the date
on which the judgment had become final in respect of the disputed
plots and the application had been introduced on 16 November 2002,
which was more than six months later.
- The
applicants claimed that the six-month time-limit had started to run
from the Court of Cassation's decision of 31 May 2002, when the
appellate court had re-examined their case on its merits and
dismissed their appeal.
- The
Court notes that on 7 May 1996 the Bakırköy Cadastral Court
dismissed the applicants' claim concerning the disputed plots
nos. 115 and 119. Although the applicants did not appeal
against this judgment, the Court of Cassation examined the case
following an appeal lodged by the other parties and confirmed the
judgment of the Court of First Instance on 30 September 1997
(see paragraphs 18-20 above). Thus, for the purposes of Article 35
§ 1 of the Convention, the six-month period started to run on
30 September 1997 with regard to the second to fifth applicants.
This does not apply to the first applicant, who was not a party to
the proceedings (see paragraph 19 above).
- As
regards the first applicant, the Court observes that the final
domestic decision must be taken to have been given by the Court of
Cassation on 31 May 2002, when the first applicant's rectification
request was dismissed after the re-examination of his claims to the
disputed plots (see paragraphs 25 and 26 above).
- In
view of the above and bearing in mind that the applicants introduced
their application on 16 November 2002, the Court dismisses the
Government's objection concerning the alleged failure to observe the
six-month time-limit in regard to the first applicant, but allows it
in respect of the second to fifth applicants.
- The
Court will therefore confine its examination of the case to the
allegations made by the first applicant.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
first applicant complained that the length of the proceedings had
been incompatible with the “reasonable time” requirement
of Article 6 § 1 of the Convention, which insofar as
relevant reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that claim.
- The
Court notes that the proceedings in question began in 1959 for the
first applicant, the date on which he was designated as one of the
heirs of Ahmet Muhtar Merter, and ended on 31 May 2002. They thus
lasted forty-three years for two levels of jurisdiction, dealing with
the case several times. The Court's jurisdiction ratione temporis,
however, only permits it to consider the period of fifteen years and
four months which elapsed after 28 January 1987, the date of
deposit of Turkey's declaration recognising the right of individual
petition under the Convention. It must nevertheless take account of
the state of the proceedings at that time (see Şahiner
v. Turkey, no. 29279/95, § 21, ECHR 2001 IX).
It notes that by that date the case had already been pending for
almost twenty-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 accepts that the case was complex, given the large number of
parties claiming rights over the disputed plots and the difficulties
faced by the domestic courts in examining land registry records
dating back to Ottoman times.
- As
regards the conduct of the parties, the Court notes that the first
applicant contributed to the delay in the proceedings. In particular,
it does not appear that the first applicant regularly followed up the
progress made in the proceedings until 2 February 1999, the date on
which he made an application to the Bakırköy Cadastral
Court asking for leave to appeal against the judgment of 23 December
1992. Although the Court of Cassation accepted the applicant's
request and granted him leave to appeal because the aforementioned
judgment had not been duly served on him (see paragraph 25
above), the Court observes that the applicant must be considered to
have been negligent by not appointing a new legal representative to
replace the former one who had died in 1989, or by not contacting his
co-litigants for a substantial period of time. In these
circumstances, the delay during the period between 23 December 1992
and 2 February 1999 cannot be wholly attributed to the national
authorities.
- Turning
to the conduct of the authorities, the Court finds that the overall
length of the proceedings is excessive and cannot be justified by the
complexity of the case alone. In the Court's opinion, the length of
the proceedings is explained by the failure of the domestic courts to
act with sufficient diligence. Furthermore, the Court has
frequently found violations of Article 6 § 1 of the Convention
in cases raising issues similar to the one in the present application
(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 here. Having regard to
its case-law on the subject, the Court finds 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 in respect of the
first applicant's claim.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Relying
on Article 1 of Protocol No. 1 to the Convention, the first applicant
alleged that the domestic courts' decisions constituted an
unjustified interference with his right to the peaceful enjoyment of
his property.
- The
Government maintained that the applicant's complaint had been
thoroughly examined by the domestic courts and that it had been
established that he had no property rights over the disputed plots.
- The
Court notes that the applicant's complaint under Article 1 of
Protocol No. 1 essentially arises out of the national courts'
assessment of the evidence before them and their interpretation of
the domestic law. Accordingly, this complaint should be examined
under Article 6 § 1 of the Convention (see Namlı and
Others v. Turkey (dec.), no. 51963/99, 8 March 2005).
- In
this connection, the Court reiterates that, according to its
established case-law, it is not its function to deal with errors of
fact or law allegedly committed by a national court unless and in so
far as they may have infringed the rights and freedoms protected by
the Convention (see, among other authorities, García Ruiz
v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
The establishment of the facts and the assessment of the evidence are
primarily matters for the domestic courts, the Court's supervisory
jurisdiction being limited to ensuring that the applicant's
Convention rights have not been breached.
- The
Court further observes that it is not for the Court to settle issues
of ownership of disputed land (see Nalbant v. Turkey (dec.),
no. 61914/00, 12 May 2005).
- In
the present case, the domestic proceedings concerned the
determination of ownership of a number of plots and, after a lengthy
examination, the domestic courts found that the first applicant,
together with other heirs of Ahmet Muhtar Merter, had no property
rights over plots nos. 115 and 119. Having regard to the
documents in its possession, the Court finds no indication that the
taking and assessment of the evidence by the domestic courts were
arbitrary or that the proceedings were otherwise unfair so as to
raise an issue under Article 6.
- In
view of the above, the Court concludes that this complaint under
Article 1 of Protocol No. 1 should be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. 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.”
- The
first applicant did not submit a claim for just satisfaction.
Accordingly, the Court considers that there is no call to award him
any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the first applicant's complaint
concerning the 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 as a result of the excessive length of
the proceedings.
Done in English, and notified in writing on 23 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
