SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26576/02
by Hasan GENÇ
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 October 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 23 March 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hasan Genç, is a Turkish national who was born in 1944 and lives in Istanbul. He is represented before the Court by Mr H. Işık, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 March 1994 the applicant was granted a lease by the Istanbul Municipality (İstanbul Büyükşehir Belediyesi) to run a car park on a plot of land by the coast in the Kadıköy district of Istanbul.
1. Proceedings before the civil courts brought by the applicant
In 1995 and 1997 the Kadıköy branch of the National Estate Directorate (Milli Emlak Müdürlüğü; hereinafter the “Directorate”), attached to the Istanbul Revenue Office (Defterdarlık), requested the applicant to pay compensation (ecrimisil) for occupying the land in question and, subsequently, attempted to evict the applicant from the car park area.
On 16 January 1998 police officers served an eviction order on an employee of the applicant, according to which the applicant was ordered to leave the car park by 22 December 1998.
Subsequently, the applicant filed a case with the Kadıköy Civil Court of First Instance against the Treasury, the Kadıköy branch of the National Estate Chamber, the Kadıköy Municipality and the Istanbul Municipality. He requested that the dispute be resolved and his status as the leaseholder be recognised. He also sought a temporary injunction to prevent the eviction.
On 21 January 1998 the court granted the temporary injunction.
On 2 November 1998 the Kadıköy Civil Court of First Instance gave judgment and recognised the applicant as the leaseholder.
On 21 May 2001 the Court of Cassation upheld the judgment of the first‑instance court.
The Treasury requested rectification of the decision of 21 May 2001.
On 22 October 2001 the Court of Cassation dismissed the Treasury’s request.
2. Proceedings before the administrative courts brought by the applicant
In the meantime, on 14 and 27 July 1999 and 24 March 2000, the Directorate issued three orders requesting the applicant to pay compensation for occupying the car park between 1 March 1998 and 31 December 1999.
The applicant filed three separate cases with the Istanbul Administrative Court against the Istanbul Revenue Office, requesting that the orders be annulled.
On 25 May 2000 and 23 February 2001 the administrative court annulled the orders, holding that the applicant was the leaseholder of the car park and that he could not be regarded as having illegally occupyied the plot in question.
The administrative authority appealed.
On 17 December 2004 and 4 February 2005, the Supreme Administrative Court rendered three decisions, quashing the judgments given by the Istanbul Administrative Court. In its decisions, the Supreme Administrative Court observed that the property in question was within the coastal line, and maintained that, pursuant to domestic law, the coast could not be subject to private ownership. The court further noted that the property in question did not belong to the Municipality, but to the Treasury. It concluded that the applicant was illegally occupying land belonging to the Treasury and that, therefore, the orders were lawful. The Supreme Administrative Court subsequently remitted the case files to the Istanbul Administrative Court.
On 24 June 2005, having regard to the decisions of the Supreme Administrative Court, the Istanbul Administrative Court dismissed two of the three cases.
The applicant appealed and the proceedings in the two cases are still pending before the Supreme Administrative Court.
Moreover, the third set of proceedings is still pending before the Istanbul Administrative Court.
Meanwhile, on 28 January 2003 the applicant filed another case with the Istanbul Administrative Court requesting the annulment of a compensation order issued by the Directorate on 11 March 1998, alleging that this order had been served on another person and that he had only learned about it on 13 January 2003.
The Istanbul Administrative Court dismissed the case, holding that the applicant had failed to file his request within the seven day statutory time-limit which ran from 13 January 2003.
3. Criminal proceedings brought by the applicant
In 2000 and 2001 the Directorate twice requested the district governor’s office in Kadıköy to evict the applicant from the car park. On both occasions, the district governor informed the Directorate that the eviction could not be effected since the case was before the Supreme Administrative Court.
On 23 February 2001 the applicant filed a complaint against four directors of the Directorate, alleging that they had not complied with the court order of 21 January 1998.
On 23 May 2001 the Istanbul governor authorised criminal proceedings against these officers.
On 29 August 2001 the Istanbul Public Prosecutor issued a decision of non-prosecution, holding that the directors had not seen the order of 21 January 1998 in the case file and, therefore, had ordered the eviction in good faith. The applicant objected to this decision.
On 3 October 2001 the Beyoğlu Assize Court dismissed the applicant’s objection.
4. Damage to the applicant’s property
On 26 January 2005 officers from the Istanbul Municipality and police officers arrived at the car park, and allegedly damaged the signs, fences, a cabin, the gate and the electricity and telephone systems in the car park. They also blocked its entrance.
On 27 January 2005 the applicant filed a petition with the Kadıköy Magistrates’ Court, requesting that the damage to the car park be determined. On the same day the first‑instance court and an expert made an on-site inspection.
On 3 February 2005 the expert submitted a report to the Kadıköy Magistrates’ Court, according to which the applicant had suffered damage amounting to 18,040 New Turkish liras (YTL) [approximately 10,446 euros (EUR)].
Meanwhile, on 28 January 2005 the applicant submitted a petition to the Istanbul Municipality requesting information concerning the incident.
On 7 February 2005 the Estate Directorate attached to the Istanbul Municipality sent a letter to the applicant, maintaining that this directorate had not ordered any action in respect of the car park.
5. Civil proceedings brought by the Treasury
On 14 October 2004 the Treasury filed a case with the Kadıköy Civil Court of First Instance against the Istanbul Municipality, alleging that the latter had rented the plot in question illegally as the plot belonged to the Treasury. It claimed 254,117,333,000 Turkish liras (TRL) [approximately EUR 141,000] from the Municipality for unjust enrichment between 1994 and 2004.
On 27 December 2005 the first-instance court awarded the Treasury TRL 37,633,076,040 (approximately EUR 20,880), being the amount of rent paid by the applicant to the Municipality between 1994 and 2004.
On 13 June 2006 the Court of Cassation remitted the case file to the first‑instance court.
COMPLAINTS
The applicant alleges a violation of Article 1 of Protocol No. 1 on account of the authorities’ failure to comply with courts’ judgments and the damage he allegedly suffered due to the acts of officers from the Istanbul Municipality and police officers on 26 January 2005.
The applicant maintains under Article 13 of the Convention that there is no effective remedy in domestic law against the administrative authorities’ acts.
The applicant complains under Article 6 § 1 of the Convention that the proceedings before the administrative courts concerning the orders of 14 and 27 July 1999 and 24 March 2000 have not been concluded within a reasonable time.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 that the administrative authorities’ failure to comply with the judgments of the national courts constituted a violation of his right to property.
The Court notes that both the administrative proceedings concerning the orders of 14 and 27 July 1999 and 24 March 2000 and the civil proceedings brought by the Treasury against the Istanbul Municipality are still pending before the domestic courts. Accordingly, this part of the application is premature.
It follows that this complaint is to be dismissed for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant complains under Article 1 of Protocol No. 1 about the damage he allegedly suffered due to the acts of officers from the Istanbul Municipality and police officers on 26 January 2005.
The Court observes that the applicant applied to the Kadıköy Magistrates’ Court for a determination of the extent of the damage he had suffered. However, he could and should have applied to the administrative courts, requesting compensation from the administrative authorities for the alleged damage. In the circumstances of the case, the Court finds that the applicant has failed to comply with the requirement to exhaust domestic remedies.
It follows that this part of the application must also be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
3. The applicant contends under Article 13 of the Convention that there is no effective remedy in domestic law against the administrative authorities’ acts.
The Court recalls that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Said v. the Netherlands (dec.), no. 2345/02, 17 September 2002).
Having regard to the fact that the applicant had access to and indeed also availed himself of an effective remedy within the meaning of Article 13 of the Convention, namely the remedy before the administrative courts, the Court finds that no issue arises under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant finally complains under Article 6 § 1 of the Convention that the proceedings before the administrative courts concerning the orders of 14 and 27 July 1999 and 24 March 2000 have not been concluded within a reasonable time.
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings before the administrative courts involving the orders of 14 and 27 July 1999 and 24 March 2000;
Declares the remainder of the application inadmissible.
S. Dollé J.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy