CASE OF UĞURLU AND OTHERS v. TURKEY

SECOND SECTION

CASE OF UĞURLU AND OTHERS v. TURKEY

(Applications nos. 26437/08, 14954/09, 53137/09 and 60300/10)

JUDGMENT

STRASBOURG

14 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Uğurlu and Others v. Turkey,

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

Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 17 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in four applications (nos. 26437/08, 14954/09, 53137/09 and 60300/10) 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 eight Turkish nationals, Mr Müslim Uğurlu, Ms Mercan Çalışkan, Mr Necdet Siyamoğlu, Mr Tuncay Siyamoğlu, Ms Aynur Baskak, Mr Cevdet Düzgünsıvacı, Mr Semih Düzgünsıvacı and Ms Gülser Özalp (“the applicants”), on 23 May 2008 (application no. 26437/08), 23 February 2009 (application no. 14954/09), 29 September 2009 (application no. 53137/09) and 27 September 2010 (application no. 60300/10) respectively.

2. Mr Uğurlu was represented before the Court by Mr E. Pekcan, a lawyer practising in Kocaeli. Ms Çalışkan was represented by Mr İ. Bazan, a lawyer practicing in Istanbul. Mr N. Siyamoğlu, Mr T. Siyamoğlu, Ms Baskak, Mr C. Düzgünsıvacı and Mr S. Düzgünsıvacı were represented by Ms N. Şentuna, a lawyer practicing in İzmir. Ms Özalp was represented by Ms J. Kapıdere, a lawyer practicing in İzmir.

The Turkish Government (“the Government”) were represented by their Agent.

3. On 8 February 2016 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants are Turkish nationals, whose dates of birth and places of residence are shown in the appendix. They all own plots of land located in different cities of Turkey.

5. Following local land development plans, the applicants’ plots of land were designated for public use. Subsequently, complaining about the decrease in the market value of the land and the long-term uncertainty about the fate of their plots of land, the applicants initiated compensation proceedings before the civil courts.

6. During the proceedings relating to their land, the applicants submitted the decision given by the Plenary Chamber of the Court of Cassation (civil divisions, numbered E.2004/5-555 K.2005/17) to the domestic courts and asserted that according to this decision their compensation claims had to be accepted.

7. On various dates between 2007 and 2010, the applicants’ respective claims for compensation were dismissed by the domestic courts on the ground that their plots of land were not actually seized by the authorities. In their decisions, neither the courts of first instance nor Fifth Civil Division of the Court of Cassation, which examined the applicants’ claims on cassation, expressed any reason as to why they had reached a different conclusion from the plenary Court of Cassation.

8. The details of the proceedings may be found in the appended table.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Law no. 6384 of 19 January 2013

9. A description of the domestic law and practice with respect to the Compensation Commission established by Law no. 6384 of 19 January 2013 (see paragraph 29 below) may be found in Paksoy and Others v. Turkey (dec.), no. 19474/10, 7 June 2016.

B. Court of Cassation Act (Law no. 2797 of 4 February 1983)

10. According to section 15 (1) of the Court of Cassation Act (Law no. 2797), the plenary Court of Cassation (civil divisions) has the authority to review civil courts’ rulings confirming their previous judgments, following rulings by the civil divisions of the Court of Cassation quashing those previous judgments.

11. Section 15 (2-b) of the same Act provides that if there are contradictory judgments delivered by the different civil divisions of the Court of Cassation, the plenary Court of Cassation (civil divisions) shall give a final ruling on the matter, thus unifying the case law.

12. Section 16 (5) of Law no. 2797 stipulates that if judgments given by one (or more than one) of the civil divisions of the Court of Cassation and the Plenary Chamber of the Court of Cassation (civil division) contradict each other, then the Grand Plenary Chamber of the Court of Cassation shall give a final ruling harmonising the conflicting judgments.

C. The decision of the Plenary Chamber of the Court of Cassation (civil divisions, dated 11 May 2004 and numbered E.2004/5-555 K.2005/17)

13. In its decision of 11 May 2004, numbered E.2004/5-555 K.2005/17, the Plenary Chamber of the Court of Cassation (civil divisions) examined the issue of zoning restrictions imposed on land that belonged to individuals. The case was about a plot of land which had been allocated for the construction of a school in the zoning plan. After its owner had brought a compensation case, firstly, Ankara 24th Civil Court of First Instance accepted the compensation claim of the owner as there was a seizure without expropriation. However, Fifth Civil Division of the Court of Cassation quashed Ankara 24th Civil Court of First Instance’s decision on the ground that the land at issue had not been controlled or used effectively by the public administrations. Subsequently, Ankara 24th Civil Court of First Instance insisted on its previous decisions and the case was brought before the Plenary Court of Cassation (civil divisions) in accordance with section 15 (1) of the Court of Cassation Act (Law no. 2797). The Plenary Chamber of the Court of Cassation (civil divisions) noted in its decision, dated 11 May 2004 and numbered E.2004/5-555 K.2005/17, that as it terminated alternative possibilities of using the land, the designation of land as a public use area in zoning plans amounted to seizure without expropriation and thus the decision of Ankara 24th Civil Court of First Instance was in conformity with the law in this respect.

THE LAW

14. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

15. The applicants complained of a violation of their right to a fair trial on account of the contradictory judgments delivered by domestic courts in very similar cases. They relied on Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

17. The applicants complained that the contradictory decisions given by the domestic courts in respect of very similar cases had undermined legal certainty and that this had breached their right to a fair trial under Article 6 § 1 of the Convention.

18. The Government did not submit comments on the applicants’ claim.

19. The Court reiterates at the outset that conflicting decisions in similar cases heard in the court of last instance may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, § 30, 25 April 2013, and Emel Boyraz v. Turkey, no. 61960/08, 2 December 2014, § 72). The criteria that guide the Court’s assessment of the conditions in which conflicting decisions are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether profound and long‑standing differences exist in the case-law of the domestic courts, whether the domestic law provides for a mechanism for overcoming these inconsistencies, whether that mechanism has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others v. Bulgaria, no. 23530/02, §§ 49-50, 2 July 2009, and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 53, 20 October 2011).

20. In the present cases the Court notes that, during the domestic proceedings, the applicants cited only one decision rendered by the Plenary Chamber of the Court of Cassation in 2004 which had found in favour of the claimant, whose plot of land had also been designated for public use by a local land development plan. While it is true that Fifth Civil Division of the Court of Cassation reached different conclusions in the applicants’ cases which were seemingly very similar to that examined by the Plenary Chamber of the Court of Cassation in 2004, it cannot be said that there were “profound and long-standing differences” in the relevant case‑law. The Court further notes that, although it is not directly accessible to the applicants, according to section 16 (5) of the Court of Cassation Act (Law no. 2797), in cases where there is inconsistency between a decision of a civil division of the Court Cassation and the Plenary Chamber of the Court of Cassation (civil divisions), the Grand Plenary Court of Cassation renders a legally binding decision settling the conflict of case-law. Taking these aspects into consideration, the Court finds no reason to further examine whether the aforementioned provision for overcoming the judicial inconsistencies could have been applied in the instant case and to what effect (see, mutatis mutandis, Arişanu v. Romania (dec.), no. 17436/09, 28 January 2014). In these circumstances, and bearing in mind that interpretation is inherent in the work of the judiciary (as case-law is evolutive in essence) and that it is not the Court’s function to compare different judgments of national courts, even if delivered in respect of similar proceedings, the Court considers that the difference of interpretation between the decisions of the Plenary Chamber of the Court of Cassation (civil divisions) and Fifth Civil Division of the Court of Cassation does not, in itself, constitute a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, Emel Boyraz, cited above, § 73).

21. The Court, however, reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, and the cases cited therein). Although Article 6 § 1 obliges courts to give reasons for their rulings, it cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the ruling and must be determined in the light of the circumstances of the case (Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303‑B; and García Ruiz, cited above, § 26). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s judgment (Helle v. Finland, 19 December 1997, §§ 59-60, Reports of Judgments and Decisions 1997‑VIII; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; Stepanyan v. Armenia, no. 45081/04, § 35, 27 October 2009; and Emel Boyraz, cited above, § 74).

22. In the present applications, during the compensation proceedings, the applicants drew the attention of the courts of first instance and Fifth Civil Division of the Court of Cassation to the decision of the Plenary Chamber of the Court of Cassation (civil divisions, numbered E.2004/5‑555 K.2005/17) ruling that the designation of land as a public use area in local land development plans amounted to seizure without expropriation. However, neither during the first-instance proceedings nor in the cassation proceedings did the domestic courts consider the applicants’ submissions when concluding that the applicants did not have a right to compensation on the ground that their land were not controlled or used effectively by the public administrations. In the Court’s opinion, while an earlier judgment delivered by the Plenary Chamber of the Court of Cassation (civil divisions) was in conflict with the approaches of the first-instance courts and Fifth Civil Division of the Court of Cassation in the present cases, the applicants’ submissions regarding the said judgment required an adequate and express response. In the absence of such a response, it is impossible to ascertain whether the domestic courts simply neglected to deal with the applicants’ submissions or whether they intended to dismiss their argument and, if that was their intention, what their reasons were for so deciding (see Hiro Balani, cited above, § 28; and Emel Boyraz, cited above, § 75).

23. The Court further notes that it has already examined an identical problem in a similar case, in which it concluded that there had been a violation of Article 6 § 1 of the Convention in that the domestic courts had failed to fulfil their duty to provide a response to the applicant’s submissions (see Emel Boyraz, cited above, § 75). It sees no reason to reach a different conclusion in the present cases.

24. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the absence of sufficient reasons in the domestic courts’ decisions.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

25. The applicants further complained that the restriction imposed on their land as a result of the local land development plans constituted a disproportionate burden and violated their right to property under Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26. In respect of application no. 60300/10, the Government submitted that the applicant had lost her victim status after her land had been expropriated by the İzmir Metropolitan Municipality and the expropriation compensation had been paid in full to her in 2015. They therefore invited the Court to declare the applicant’s right to property complaint inadmissible as being incompatible ratione personae.

27. The Government also noted that pursuant to Law no. 6384 a new Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings, the delayed execution of judgments and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to examine complaints relating to, among other things, the alleged breaches of the right to peaceful enjoyment of possessions on account of the allocation of the applicants’ land for public use in local land development plans. Accordingly, they maintained that all the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

28. In relation to the question whether the applicant has lost her victim status in application no. 60300/10, the Court notes that the applicant’s plot of land was designated for the construction of a parking area under the local land development plan adopted in 1984. In this regard the applicant complained before the Court about the continuing restriction on the use of her property and the uncertainty about the fate of her land. Although, as the Government pointed out, the applicant’s land was expropriated and she was paid the expropriation compensation in 2015, the applicant did not obtain redress insofar as she claimed that she had been unable to use her land for more than two decades and the fate of her land had remained uncertain during this period. The Court therefore considers that the applicant still can claim to be a victim of a violation of her right to property under Article 1 of Protocol No. 1 to the Convention and rejects the Government’s preliminary objection in this respect.

29. Insofar as the Government argued that all the applicants should have applied to the Compensation Commission, the Court observes that, as pointed out by the Government, a new domestic remedy was 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 judgment in the case of Paksoy and Others v. Turkey ((dec.), no. 19474/10, 7 June 2016), the Court declared the 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 in respect of complaints concerning the allocation of applicants’ land for public use in local land development plans.

30. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications (of the type established under the Court’s Ümmühan Kaplan judgment) which had already been communicated to the Government.

31. However, taking into account the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Paksoy and Others (cited above).

32. In view of the foregoing, the Court concludes that the applicants’ complaints concerning the restrictions imposed on their plots of land by local land development plans should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Applications nos. 26437/08 and 60300/10

33. The applicants in cases nos. 26437/08 and 60300/10, who had been invited to submit their claims for just satisfaction before 1 February 2017, did not submit such claims. Accordingly, the Court considers that there is no reason to award these applicants any sum under Article 41 of the Convention.

B. Application no. 14954/09

34. The applicant claimed 4,180,000 Turkish liras (TRY – approximately 1,045,000 euros (EUR)) in respect of pecuniary damage. That sum comprised TRY 2,560,000 corresponding to the market value of the applicant’s land and TRY 1,620,000 corresponding to the rent for which the land could have been leased since 1989. In respect of non-pecuniary damage the applicant claimed EUR 10,000.

35. The applicant further claimed TRY 11,513.29 (approximately EUR 2,900) in respect of costs and expenses incurred in the domestic proceedings. In respect of his claim, he solely submitted invoices pertaining to the court fees that he had paid during the domestic proceedings and the sum of these invoices amounts to EUR 350.

36. The Government submitted that the amounts claimed by the applicant were speculative and excessive. They therefore invited the Court to dismiss the applicant’s claims.

37. Noting that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of a fair hearing as guaranteed by Article 6 § 1 of the Convention, the Court considers that it cannot speculate as to the outcome of the proceedings had the position been otherwise. Accordingly, any causal link between the violation found and the pecuniary damage alleged has not been established and the applicant’s claim in that respect has to be dismissed. However, the Court considers that the applicant must have suffered some non-pecuniary damage and therefore, taking into account the circumstances of the present case, and ruling on an equitable basis, it awards her EUR 4,000 in respect of non-pecuniary damage.

38. As regards the costs and expenses claimed by the applicants, the Court reiterates that according to its 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 are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 350 in respect of legal fees incurred in the proceedings before the domestic courts.

C. Application no. 53137/09

39. The applicants claimed EUR 915,427, representing the actual value of their land, in respect of pecuniary damage. In respect of non-pecuniary damage, they each claimed EUR 5,000. They further requested EUR 10,466 for costs and expenses incurred in the domestic proceedings and before the Court.

40. The Government contested the claims.

41. Having regard to the nature of the violation found, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicants under this head.

42. As regards the claim for non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants jointly a total sum of EUR 4,000 under this head.

43. In respect of the costs and expenses claimed by the applicants, regard being had to the documents in its possession, the Court considers it reasonable to award the applicants jointly the sum of EUR 650 covering costs under all heads.

FOR THESE REASONS, THE COURT,

1. Decides to join the applications;

2. Declares the applicants’ complaints concerning the adequacy of the reasoning in the domestic courts’ judgments admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable:

(i) in respect of non-pecuniary damage:

- EUR 4,000 (four thousand euros) to Ms M. Çalışkan;

- EUR 4,000 (four thousand euros), jointly, to Mr N. Siyamoğlu, Mr T. Siyamoğlu, Ms A. Baskak, Mr C. Düzgünsıvacı, and Mr S. Düzgünsıvacı;

(ii) in respect of costs and expenses:

- EUR 350 (three hundred and fifty euros) to Ms M. Çalışkan;

- EUR 650 (six hundred and fifty euros), jointly, to Mr N. Siyamoğlu, Mr T. Siyamoğlu, Ms A. Baskak, Mr C. Düzgünsıvacı, and Mr S. Düzgünsıvacı;

(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;

5. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 14 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident

APPENDIX

\* MERGEFORMAT Application no. and case name

Applicant’s name,

date of birth and place of residence

Details of land in dispute

Type and date of restriction imposed on the land

Date and no. of the first instance court decision that rejected the compensation claim

Date and no. of the final decision of the Fifth Civil Division of the Court of Cassation

26437/08

Uğurlu

Müslim UĞURLU,

1955,

Kocaeli

Kocaeli, İzmit, Sarımeşe District,

Plot No. 7,

Parcel No. 569

Military security zone - 1982

23/03/2006

Kocaeli Civil Court,

E. 2005/137

K. 2006/72

16/11/2006

E.2006/11467

K.2006/12246

14954/09

Çalışkan

Mercan ÇALIŞKAN,

1949,

United Kingdom

İstanbul, Avcılar, Mustafa Kemal Paşa District,

Plot No. 46, Parcel No.7231

Park area – 1982 (The applicant purchased the land in question in 1989)

26/09/2007

Küçükçekmece Civil Court,

E. 2007/455

K. 2007/509

(delivered upon the quashing decision of the Fifth Civil Division of the Court of Cassation numbered E.2007/920 K.2007/2208)

18/06/2007

E.2007/6752

K. 2007/7968

(rejecting the applicant’s rectification request for decision of the same division numbered E.2007/920 K.2007/2208)

53137/09

Siyamoğlu

Necdet SİYAMOĞLU,

İzmir

Tuncay SİYAMOĞLU,

1960,

İzmir

Aynur BASKAK,

1954,

Fethiye

Cevdet DÜZGÜNSIVACI,

1962,

İzmir

Semih DÜZGÜNSIVACI,

1985,

İzmir

İzmir,

Konak,

Güzelyalı District,

Plot No. 21L-Ib,

Block No. 34548,

Parcel No. 1

School area - 1984

28/01/2008

İzmir Civil Court,

E . 2007/53

K . 2008/8

10/03/2009

E.2008/15491

K. 2009/3800

60300/10

Özalp

Gülser ÖZALP,

1946,

Burdur

İzmir,

Konak,

Bozyaka District,

Block No. 6851, Parcel No. 3

Parking area - 1984

26/02/2009

İzmir Civil Court,

E. 2007/392

K. 2009/53

02/03/2010

E.2009/18331 K.2010/3157

 

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