SECOND SECTION
DECISION
Application no. 47136/06
Süleyman ÇAKAR
against Turkey
The European Court of Human Rights (Second Section), sitting on 25 April 2017 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 1 November 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Süleyman Çakar, is a Turkish national, who was born in 1939 and lives in Izmir. He was represented before the Court by Mr S. Aydıner, a lawyer practising in Izmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1967, a third party bought a plot of land in Doğanbey Village, in the Seferihisar District of İzmir and the title deed of the land was registered in her name.
5. In 1978, a cadastral survey was conducted in the region and the impugned plot of land was delimited within the boundaries of the public forest area.
6. On 7 April 1995 the applicant entered into an agreement with the third party’s heirs to purchase the land. The agreement was certified by the public notary.
7. On 11 September 1998 the applicant brought a claim before the Seferihisar Civil Court of First Instance to have the land in question entered in the land register in his name. The applicant relied on the sale agreement and the law on adverse possession to substantiate his claim.
8. On 20 September 2007 the Seferihisar Civil Court of First Instance dismissed the applicant’s claim on the ground that the land had been part of the public forest area and could thus not be privately owned.
9. The applicant’s appeal and rectification requests were subsequently rejected by the Court of Cassation on 26 June 2008 and 18 November 2008 respectively. The Court of Cassation indicated in its decisions that the ownership of the land in dispute could not be acquired by adverse possession as it had been part of the public forest area and that the applicant could not claim any right relying on the title deed since he had not been the holder of the title to the property.
B. Relevant domestic law and practice
10. A description of the domestic law and practice with respect to the Compensation Commission (see paragraphs 15-16 below) may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013).
11. A description of the relevant domestic law regarding the acquisition of ownership of real property, adverse possession and designation of land as public forest area may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-59, 8 July 2008), Usta v. Turkey ((dec.), no. 32212/11, §§ 20-22, 27 November 2012) and İpseftel v. Turkey (no. 18638/05, §§ 20‑24, 26 May 2015).
COMPLAINTS
12. The applicant complained under Article 6 § 1 of the Convention that the domestic proceedings were not concluded within a reasonable time.
13. The applicant further complained of a violation of Article 1 of Protocol No. 1 to the Convention, alleging that the refusal of the domestic courts to register the land in question in his name breached his right to peaceful enjoyment of his possessions.
THE LAW
A. As to Article 6 § 1 of the Convention
14. The applicant complained that the length of the domestic proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
15. The Government noted that pursuant to Law no. 6384 of 9 January 2013 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he should avail himself of the remedy before the Compensation Commission.
16. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared an application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
17. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.
18. However, taking into account the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others, cited above.
19. In view of the above, the Court concludes that this part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. As to Article 1 of Protocol No. 1 to the Convention
20. The applicant complained under Article 1 of Protocol No. 1 to the Convention that he was deprived of his property without any compensation.
21. The Government contested that argument.
22. The Court reiterates at the outset that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned measure relates to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. Where the proprietary interest is in the nature of a claim, it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming its existence (see, amongst many authorities, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‑VII, and Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004‑IX).
23. The Court notes that under Turkish law, the ownership of a plot of land is acquired through registration in the land register and that there is no dispute between the parties as to the fact that the plot of land at stake was registered in the land register as belonging to a third party. Even though the applicant entered into an agreement to purchase the land before the public notary, he did not have the title to the land and the domestic courts thus held that he could not claim any right over the land relying on the title deed.
24. In these circumstances, the Court considers it obvious that the present case does not concern an “existing possession” of the applicant.
25. The Court further notes that in certain circumstances, a “legitimate expectation” of obtaining an “asset” may enjoy the protection of Article 1 of Protocol No. 1. However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, § 50).
26. In the present case, the applicant requested the registration of the land in question in his name before the domestic courts, relying on the sale agreement and the law on adverse possession. However the domestic courts rejected the applicant’s request on the grounds that the land had been part of the public forest area and that the ownership of forests could not be transferred or acquired by way of prescription.
27. Having regard to the information before it, and considering that it has only limited power to deal with alleged errors of fact or law made by the national courts, where the interpretation and application of domestic law is primarily the responsibility of those courts (see Kopecký, cited above, § 56), the Court finds no appearance of arbitrariness or unreasonableness in the way in which the domestic courts decided those proceedings.
28. Furthermore the Court observes that it has already examined a similar situation in the case of Usta v. Turkey ((dec.), no. 32212/11, 27 November 2012). In that case the Court concluded that under the relevant provision of the Turkish Constitution, it was not possible to obtain entitlement to forest land by possession or to transfer the ownership of it to third parties and that the applicant’s claim could not be regarded as an asset within the meaning of Article 1 of Protocol No. 1. (ibid., §§ 38-45). In the present case, the Court sees no reason to depart from its findings in the above-mentioned case.
29. In the circumstances of the present case, the Court finds that the applicant did not have an existing possession or a claim constituting an asset within the meaning of Article 1 of Protocol No. 1 to the Convention.
30. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 May 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy