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SECOND
SECTION
CASE OF DEMİRTÜRK v. TURKEY
(Application
no. 31345/05)
JUDGMENT
STRASBOURG
19
January 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 Demirtürk 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 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31345/05) 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 Dursun
Demirtürk (“the applicant”), on 15 August 2005.
- The
applicant was represented by Ms Z. Bilgiç Dölek, a lawyer
practising in Mersin. The Turkish Government (“the
Government”) were represented by their Agent.
- On
1 October 2008 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 1933 and lives in Zonguldak.
- On
an unspecified date the Land Registry Commission attached to the
General Directorate of Land Registration conducted a land registry
survey of plots of land in Belen village in the Ereğli district
of Zonguldak. Following this survey, plot nos. 2 and 3 were
registered in the Land Registry in the names of A.G. and K.G.
respectively.
- On
22 February 1985 the applicant brought a case before the Karadeniz
Ereğlisi Cadastral Court requesting that plot nos. 2 and 3 be
registered in his name.
- On
12 December 1986 the court joined the case in question to another
claim, having regard to the fact that the parties and the subject
matter of the cases were the same.
- On
6 December 2000 the court granted the applicant's request in part.
The parties appealed.
- On
12 December 2002 the Court of Cassation remitted the case to the
first-instance court on grounds of incorrect service.
- On
an unspecified date the first-instance court rectified the error in
service and sent the case to the Court of Cassation for
re-examination.
- On
29 April 2004 the Court of Cassation quashed the judgment of
6 December 2000.
- On
11 October 2006 the first instance court dismissed the case.
- On
13 March 2008 the Court of Cassation quashed the judgment of 11
October 2006.
- The
case was remitted to the first-instance court for further
examination.
- According
to the information in the case file, the case is still pending before
the first-instance court.
THE LAW
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention.
- The
Government argued that the applicant had failed to exhaust domestic
remedies as the civil proceedings were still pending before the
first-instance court. According to the Government, the application
was therefore premature.
- The Court notes that, according to its case-law,
complaints concerning length of proceedings can be brought before the
final termination of the proceedings in question (see, among many
others, Plaksin v. Russia, no. 14949/02, §§ 34-35,
30 April 2004). Accordingly, the Government's objection must be
dismissed and this part of the application should be declared
admissible.
- As
to the merits, the period to be taken into consideration began only
on 28 January 1987, when the recognition by Turkey of the right of
individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. The period in
question has not yet ended. It has thus already lasted twenty-two
years and ten months for two levels of jurisdiction.
- 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, v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). 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.
- The
applicant further complained under Article 13 of the Convention that
there were no domestic remedies available under Turkish law for the
excessive length of civil proceedings.
- The Government argued that the applicant could have
brought proceedings before the administrative courts in respect of
his complaint about the length of the civil proceedings. The Court
notes that this objection is closely linked to an examination of the
merits of the complaint. It follows that this
issue should be joined to the merits of the case. The Court further
notes that this complaint is not manifestly ill founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
- As
to the merits, the Court notes that it has previously found
violations of Article 13 of the Convention in respect of the lack of
an effective remedy under Turkish law whereby applicants could have
contested the length of the proceedings at issue (see Bahçeyaka
v. Turkey, no. 74463/01, §§ 26-30, 13 July
2006, and Tendik and Others, no. 23188/02, §§
34-39, 22 December 2005). It finds no reason to hold otherwise in the
present case since the Government failed to refer to any cases where
the courts would have awarded compensation for excessive length of
judicial proceedings. The Court accordingly dismisses the
Government's preliminary objection and concludes that there has been
a violation of Article 13 of the Convention.
- Relying
on Article 41 of the Convention, the applicant claimed
1,000,000 euros (EUR) in respect of pecuniary and non-pecuniary
damage. The Government contested this claim. 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 16,500 in
respect of non pecuniary damage.
- By
way of costs and expenses in relation to his representation, the
applicant claimed EUR 7,500 in respect of legal expenses and
150 Turkish liras
for postal expenses. In support of his claims, the applicant
submitted a legal fee agreement and invoices concerning postal
expenses. The Government disputed 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 information in
its possession and the above criteria, the Court, ruling on an
equitable basis, awards the applicant EUR 1,000 in respect of
costs and expenses.
- 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 there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 on the date of
settlement:
(i)
EUR 16,500 (sixteen thousand five hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 1,000 (one thousand 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 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
