Resit ALKIS v Turkey - 17016/06 [2012] ECHR 166 (10 January 2012)

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The European Court of Human Rights (Second Section), sitting on 10 January 2012 as a Committee composed of:

Dragoljub Popović, President,
András Sajó,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

The applicant, Mr Reşit Alkış, is a Turkish national who was born in 1958 and lives in İstanbul. He was represented before the Court by Mr M. Aslan, a lawyer practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 23 January 1989 the applicant purchased a plot of land and the sale was registered to the title deed for being worth of 1,000,000 Turkish liras (TL).

On 23 December 1993 number of interested parties brought proceedings against the applicant requesting the annulment of the applicant’s title deed, alleging that the land in question had been sold to him by an unauthorised person who held a forged proxy. The amount in dispute was stated as 2,100,000 TL in the proceedings.

On 27 December 1993 the Bakırköy Civil Court issued an injunction preventing ownership of the property from being transferred to a third party.

In July and October 2004 the jurisdictional monetary limits for rectification of a decision and for requesting an oral hearing on appeal, were increased by the Law Nos. 5219 and 5236 respectively.

In the light of the evidence before it, on 23 November 2004 the Bakırköy Civil Court decided to annul the applicant’s title deed finding that he had not acquired the land in bona fide.

The applicant lodged an appeal, along with a request for an oral hearing at the Court of Cassation.

The Court of Cassation dismissed the applicant’s request for an oral hearing, as the litigious matter of the case had not reached to the minimum value limit prescribed by the domestic law.

On 25 May 2005 the Court of Cassation upheld the judgment of the Bakırköy Civil Court.

On 22 July 2005 the applicant requested the rectification of the Court of Cassation’s decision. In his request, he argued that the Court of Cassation should have taken into account the current value of the property and accepted his request for an oral hearing in the appeal proceedings.

On 16 November 2005 the Court of Cassation rejected the applicant’s rectification request on the ground that the subject matter of the action fell short of 6,000,000,000 TL^¹, as the minimum amount prescribed by the Law no. 5219 for requesting the rectification of a decision.

Certain sections of the former Turkish Code of Civil Procedure (no. 1086), which was in force at the relevant time, were amended by Law no. 5219 of 21 July 2004.

e) The monetary value limit for requesting the rectification of a decision, as prescribed by paragraph 1 of Article 440 (III) of Law no. 1086, is increased to 6,000,000,000 (six billion liras)

The Article 435 of Law no. 1086 was amended by Law no. 5236 of 7 October 2004, which reads as follows;

“The Court of Cassation reviews judgments on the basis of case files. On the other hand, (...) in the cases where the amount or value of dispute is more than 10 billion Turkish liras, the Court of Cassation may hold a hearing at a request of either party. The date of a hearing shall be fixed by the Court of Cassation and is notified to the parties according to the procedure...”

The applicant complained under Article 6 § 1 of the Convention that he was denied a fair trial as the Court of Cassation rejected his requests for an oral hearing and rectification of the Court of Cassation’s decision on the ground that the amount concerned in the proceedings had not reached to the minimum value limit required for lodging those requests. In this connection, the applicant maintained that the Court of Cassation should have considered the latest value of the disputed property and granted his requests accordingly.

Relying on Article 6 § 1 and Article 1 of Protocol No.1 the applicant complained that the length of the civil proceedings was excessive, during which the injunction issued upon the property had been retained, in breach of his right to peaceful enjoyment of his possessions.

The applicant complained that the proceedings were not fair and excessively lengthy.

The Government submitted an observation refusing the allegation that the domestic courts had not concluded the proceedings within a reasonable time.

Concerning the fairness of the proceedings, the Court notes that, in the instant case, the subject matter of the action did not reach to the minimum value limit prescribed by the domestic law to request for the rectification of the Court of Cassation’s decision on appeal. The Court considers that the national authorities pursued a legitimate aim of preventing the Court of Cassation from being overloaded with cases of lesser importance by imposing financial thresholds for appeals and rectification requests. In this regard, the Court finds that the minimum value required by the domestic law for rectification of a decision rendered by the Court of Cassation, does not amount to a restriction as such that impairs the very essence of the applicant’s right of access to a court (see Kozlica v. Croatia, no. 29182/03, §§ 32-33, 2 November 2006). As to the application of disputed monetary thresholds which entered into force prior to the requests lodged by the applicant, the Turkish Court of Cassation followed a generally recognised principle that procedural rules laid down by the domestic law apply immediately to proceedings that are under way (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 35, Reports of Judgments and Decisions 1997 VIII).

The Court, therefore, decides that this part of the application be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

As regards the length of the proceedings, the Court next notes that the six months period runs from the final domestic decision given in the proceedings which had been resorted to by the applicant with a hope of remedying the alleged violation.

In the present case, the Court must determine the date of the “final domestic decision”.

The Court has considered that the absence of observations from the Government on the question of the six months’ rule does not prevent the Court from examining that issue by its own motion any time before the adoption of the decision of admissibility (see Walker v. UK no. 34979/97, decision of 25 January 2000).

The Court estimates that the futile nature of filing a request for rectification of the Court of Cassation’s decision should have been apparent to the applicant who was represented by a lawyer in the proceedings, as the litigious matter of the action did not reach to the financial threshold required by the domestic law for requesting the rectification of such decisions.

Therefore, the final domestic decision within the meaning of Article 35 § 1 of the Convention was the Court of Cassation’s decision of 25 May 2005, from the date of which the six months period began to run. Since the application was presented to the Court on 3 April 2006, it has been introduced more than six months later from the date of the final domestic decision.

It follows that this part of the application should be declared inadmissible for non-compliance with the six months’ rule set out in Article 35 § 1 of the Convention, and it must, therefore, be rejected pursuant to Article 35 § 4.

1 6,000,000,000 Turkish liras amount to approximately 2,400 Euros

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You are here: BAILII >> Databases >> European Court of Human Rights >> Resit ALKIS v Turkey - 17016/06 [2012] ECHR 166 (10 January 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/166.html Cite as: [2012] ECHR 166