GIRAUD AND SOLARI v. TURKEY

SECOND SECTION

DECISION

Application no. 32127/07
Gwynneth Antoinette GIRAUD and Olivia Joyce SOLARI
against Turkey

The European Court of Human Rights (Second Section), sitting on 25 August 2020 as a Chamber composed of:

Jon Fridrik Kjølbro, President,
Marko Bošnjak,
Egidijus Kūris,
Ivana Jelić,
Arnfinn Bårdsen,
Saadet Yüksel,
Peeter Roosma, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 26 July 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The first applicant, Ms Gwynneth Antoinette Giraud, has dual French and British nationality and was born in 1922. The second applicant, Ms Olivia Joyce Solari, has dual Italian and British nationality, and was born in 1929. The applicants are sisters and they live in İzmir. They were represented before the Court by Mr M.E. Atay, residing in İzmir.

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

3.  The French, Italian and British Governments did not make use of their right to intervene under Article 36 § 1 of the Convention.

A.  The circumstances of the case

4.  The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. Some of the facts are disputed.

1.  Background to the application and the island of Uzunada

5.  The application concerns Uzunada, which is an island located in the Gulf of İzmir, Urla District, in the province of İzmir. The island is not registered in the current land register (tapu sicili). It is currently inaccessible to civilians, including the applicants, as a part of it is designated as a first-degree (birinci derece) prohibited military zone. The date on which the island was allocated for the use of the Ministry of Defence is disputed between the parties. The applicants claim that the island was occupied by the forces of the Ottoman Empire during the First World War and has been under the de facto control of the Turkish armed forces since the foundation of the Turkish Republic, whereas the Government claim that only in the year 1957 was a certain part of the island allocated to the Ministry of Defence. The rest of the island is classified as forest land, and the proceedings in respect of a cadastral survey of that forested area undertaken by the cadastre (kadastro) of that part of the island (which began in 1991 and was completed on 23 June 1993) are currently ongoing before the domestic courts.

6.  The applicants claim that they are the sole inheritors of the entire island, the title of which was last registered in the names of Edward Edwards and Emily Edwards, who inherited it from Elino Binti Yorgaki, the original owner, who acquired the island in the years 1858-1859 and died intestate – that is to say without leaving a will. In support of their claim that they are the lawful heirs in respect of the island, they rely mainly on a certificate from the land Registry in respect of Uzunada and a certificate of inheritance issued by the İzmir Magistrates’ Court on 9 February 2005 (see paragraph 33 below) acknowledging the applicants’ joint, equal entitlement to the estate of one Helen Alfieri. They maintain that Helen Alfieri was the same person as Elino Binti Yorgaki (see paragraph 34 below).[1]

7.  The Government submit that Helen Alfieri was not the same person as Elino Binti Yorgaki and that the applicants are not therefore descendants of Elino Binti Yorgaki. In support of their submission, they cite the decision of the Urla Magistrates’ Court of 30 November 2016 (see paragraph 48 below).

8.  As regards the cadastral status of the island, the Government assert that a cadastral survey was completed in 1977 in the Urla district and left the island of Uzunada outside of the cadastral demarcation boundary (tespit dışı). The Government maintain that there is no cadastral survey or land Registry record in respect of the island of Uzunada. In support of their argument, they submitted the following documents to the Court:

-  A letter of 28 April 2003 from the Urla Cadastral Office of the Governor of İzmir addressed to the Forest Administration, rejecting a request lodged by the latter for the island to be registered as forest land and indicating that maps of a certain scale with the necessary technical details would need to be submitted to it in order for the requested registration to be undertaken.

-  A letter of 4 April 2005 from the General Directorate of Land Registry and Cadastral Offices (Tapu ve Kadastro Genel Müdürlüğü – “the Directorate”) addressed to the first applicant in response to a query from her about the cadastral status of the island (see paragraphs 15 and 16 below).

-  A letter of 19 April 2018 from the Cadastral Office of the Governor of İzmir addressed to the Directorate in response to a query from the Ministry of Justice concerning the facts to be submitted to the Court with respect to the present case about the cadastral status of the island. The letter mentions the following: it had been intended for a cadastral survey in respect of the island to be carried out; however, owing to the fact that the island had been declared as a first-degree prohibited military zone in 1991, the plans had never materialised. Moreover, the Forest Administration had lodged the above-mentioned request in 2002 with the Urla Cadastral Office of the Governor of İzmir for the island to be registered as forest land, but because the forest maps and records that it had submitted had been found to be technically insufficient, the request for registration had been rejected. The letter indicates that since no cadastral survey work had ever been undertaken in respect of the island, no land Registry record or cadastral record existed in respect of it.

9.  The applicants argue that there is no proof that Uzunada was ever included in a cadastral survey, as there is no official document showing that it was ever indicated as lying within the boundary of a map depicting an area subject to a planned cadastral survey. For that reason they contend that no decision was ever taken to leave the island outside the area demarcated for cadastral survey. They rely on the following exchanges:

-  On 20 February 1991, in a letter designated as “classified”, Mr. A.T., the cadastral manager in Urla, lodged a request for information with the Regional Land Register and Cadastral Office regarding how to proceed with a planned cadastral survey of certain areas in Urla (including Uzunada), noting that the latter area had not yet been subject to a cadastral survey. He furthermore requested standard typographical maps of the island in a scale of 1/5000.

-  On 11 July 1991 the Chief of Staff of the Turkish Armed Forces in Ankara sent a letter to the Directorate, replying to a request lodged by the latter for typographical maps of the island for the purposes of registering the island as being under the ownership of the Treasury of the Turkish Republic (“the Treasury”). He noted that because the island of Uzunada was a first-degree prohibited military zone, the maps in question could not be handed to the authorities but that they could be inspected in the offices of the Turkish Armed Forces, in the presence of a military officer. The letter furthermore specified that no technical inspections could be carried out on the island.

10.  Lastly, the surface area of the island is disputed by the parties. The applicants assert that since there is no evidence that a cadastral survey has ever been conducted on the island and no maps drawn, the precise area of the island is unknown. They furthermore argue that the title deeds last registered in the name of Elino Binti Yorgaki indicate that the latter had owned 21 dönüm (the unit of area used in the Ottoman Empire and normally corresponding to “forty standard paces in length and breadth”), which was also indicated as constituting the entire area of the island. The Government, on the other hand, submit that Uzunada has a surface area of about 25,000 decares (a unit of surface area equal to 1,000 square metres), whereas the title deeds relied on by the applicants correspond only to 6,983 decares of land.

2.  Proceedings lodged by the applicants concerning the cadastral forest survey of Uzunada

11.  On 5 April 2002 the Urla Title Deeds Office (Urla Tapu Sicil Müdürlüğü), in connection with a query from the applicants’ representative, replied that no cadastral work had been undertaken with respect to Uzunada.

12.  On 31 December 2002 the first applicant wrote to the Urla Forest Office (Urla Orman İşletme Şefliği) requesting (i) information as to whether a cadastral forest survey had been performed with respect to the island of Uzunada, and if so, (ii) the related documents. The Urla Forest Office in its reply of 2 January 2003 stated that the cadastral forest survey had commenced on the island on 2 September 1991 and had ended on 6 December 1991; the results had been announced on 26 June 1993.

13.  On the basis of that information, the applicants lodged a claim with the Urla Civil Court seeking to contest the findings of the cadastral forest survey. According to the latest information available to the Court, the proceedings were pending before domestic courts. The present application does not concern the parts of Uzunada that are subject to the ongoing dispute relating to the cadastral forest survey.

3.  Proceedings at issue

(a)  Administrative proceedings lodged by the applicants concerning the cadastral status of Uzunada.

14.  On 23 December 2004 the applicants lodged an application with the Directorate requesting that a cadastral survey of Uzunada be conducted. In their application, they referred to (i) the letter from the Urla Title Deeds Office of 5 April 2002 (see paragraph 11 above) and (ii) the fact that no cadastral map of Uzunada had been found in the Urla Cadastral Office of the Governor of İzmir. Lastly, they relied on section 22 and provisional section 4 of the Law on Cadastral Matters (“Law no. 3402” – see paragraphs 56 and 57 below) and attached copies of the land Registry records (tapu kayıt örneği) regarding Uzunada.

15.  On 4 April 2005 the Directorate replied to the applicants, stating that the entire area of Urla District had been subject to a cadastral survey in year 1977 and that Uzunada had been left outside the boundary demarcating the cadastral area (tespit dışı). It also noted that the cadastral forest survey had been completed in 1991 on the island and referred to the pending proceedings brought in the domestic courts by the applicants concerning that cadastral forest survey. Moreover, referring to the case-law of the Grand Chamber of the Court of Cassation’s Civil Division (decision of 7 February 2001, E. 2001/8-80 K. 2001/99) it stated that leaving an area outside a demarcation boundary set for the purposes of a cadastral survey would also be considered to constitute a “cadastral act” (kadastro işlemi) in as much as that area (i) would be considered to constitute State land, (ii) would be considered not suitable for renovation, construction or adverse possession, and (iii) in the event that no objections were raised against it being left outside the cadastral demarcation boundary.

16.  Regarding the legal provisions relied on by the applicants, the Directorate stated that section 22 had recently been amended and that Law no. 3402 no longer conferred a right on persons other than State authorities to request a cadastral survey to be conducted. It furthermore noted that even when the previous version of section 22 had been in force, a circular notice setting out the conditions of the applicability of section 22 to various situations had specified, inter alia, that the property in respect of which a request for a cadastral survey was made would need to be in the possession (or at the disposal) of the persons concerned. The Directorate also stated that since Uzunada had been in the possession of the State since 1924, it was clear that the applicants had no ownership rights that would allow them to request the authorities to conduct a cadastral survey on the basis of the provisions that had then been in force. Lastly, it noted that in any event, the applicants had not lodged an objection within the time-limit set out in the law in respect of scenarios in which an area was left outside the demarcation boundary set for a cadastral survey. It therefore rejected the applicants’ request for a cadastral survey to be conducted, on the grounds that the current regulations did not confer on them a right to make such a request.

17.  On an unspecified date the applicants lodged an application with the İzmir Administrative Court for the annulment of the Directorate’s decision rejecting their request for a cadastral survey to be conducted on the island of Uzunada.

18.  On 8 June 2005 the İzmir Administrative Court rejected that application for lack of jurisdiction. Referring to section 25 of Law no. 3402 it held that cadastral courts were the courts with jurisdiction to examine the case.

19.  After the decision of the İzmir Administrative Court had become final, the applicants then lodged a fresh application with the Urla Cadastral Court.

20.  The Urla Cadastral Court forwarded the applicants’ application to the Directorate, asking for its response; in reply, the Directorate contested the jurisdiction of the cadastral courts, arguing that given the fact that the dispute in question concerned an area that had been left outside the relevant cadastral demarcation boundary, it fell outside the jurisdiction of the cadastral courts. The Directorate also argued that a cadastral survey in the district of Urla had been completed in 1977 and that the applicants had failed to contest the results of that survey within the time-limit prescribed by Law no. 3402.

21.  After holding a hearing, the Urla Cadastral Court dismissed the application on 23 May 2006, holding that courts of general jurisdiction could not render a decision compelling the authorities to act. In that connection the cadastral court noted that the applicants’ request for the cadastral survey to be carried out in respect of Uzunada constituted an “administrative request”.

22.  On 29 September 2006, following an appeal by the applicants, the Court of Cassation upheld the decision of 23 May 2006 on the grounds that the jurisdiction of the cadastral courts began when a cadastral document was issued. Noting that the applicants’ application solely concerned an administrative request – namely, compelling the authorities to conduct a cadastral survey – it held that it was therefore clear that cadastral courts lacked jurisdiction to rule on such a request.

23.  On an unspecified date the applicants lodged an application with the Court of Jurisdictional Disputes, arguing that both the İzmir Administrative Court and the Urla Cadastral Court had rejected their application for lack of jurisdiction. They therefore requested the Court of Jurisdictional Disputes to determine which court had jurisdiction in respect of the case. On 4 February 2008 the Court of Jurisdictional Disputes dismissed the case. After summarising the impugned court decisions, it briefly noted that the Urla Cadastral Court’s decision could not be considered to constitute a decision delivered by a court that had not had the relevant jurisdiction; therefore, there had been no conflict of jurisdiction (as had been alleged by the applicants).

(b)  Action before the civil courts for a declaratory judgment

24.  On 31 March 2008 the applicants lodged an application with the Urla Civil Court of First Instance (“Urla Civil Court”), seeking a declaration that a cadastral survey had never been carried out in respect of Uzunada. In their application they summarised the proceedings they had brought in order to determine the cadastral status of Uzunada, none of which according to them had shed light on the question of the actual status of Uzunada, since the Directorate had failed to produce documents that could prove conclusively that the island had been subject to a cadastral survey but had been left outside the cadastral demarcation. They maintained that the act of leaving an area outside the cadastral demarcation would need to be documented with boundary and typographical maps and that there had to be an official document stating (i) that the area in question fell within the boundary but had been not been surveyed, and (ii) the reason that it had not been surveyed. Given that the Directorate had never disclosed such documents to the applicants or to the courts in the course of the domestic proceedings, the applicants explained that they had a legal interest in seeking an official declaration of the cadastral status of Uzunada in order to protect their property interests with respect to the island. They also asked the court to order the Directorate to conduct a cadastral survey in the event that it found that no cadastral survey had ever been carried out.

25.  On 19 June 2009, the Urla Civil Court dismissed the applicants’ case on the grounds of their not having a legal interest in bringing a declaratory action. In its reasoning the court held that in the light of the circumstances of the present case and from the documents submitted by the parties, it was apparent that Uzunada had been left outside the cadastral demarcation. The court therefore reasoned that the correct legal action, which the applicants should pursue to protect their proprietary interests was to lodge an action seeking the registration of the area in question under their name (tapu tescili davası). That would settle the questions of the cadastral status of Uzunada and the applicants’ property claim to the island. Hence, the court dismissed the applicants’ request, in accordance with the principle that in cases where a claimant has the right bring an action for performance, he or she cannot be given leave to bring a declaratory action.

26.  On 4 October 2010, following an appeal by the applicants, the Court of Cassation upheld the Urla Civil Court’s decision of 19 June 2009, noting that the applicants had the possibility to bring an action for the property to be registered in their names on the basis of adverse possession under Article 713 § 1 of the Civil Code and by producing relevant title deeds or other legal evidence, as set out in section 12(4) of Law no. 3402.

27.  On 3 March 2011 the Court of Cassation rejected a request lodged by the applicants for the rectification of its decision of 4 October 2010 on the grounds that none of the reasons put forth by the applicants fell within the exhaustive list of permissible grounds for rectification.

4.  Parallel and subsequent ex parte proceedings concerning the parties’ application for the issuance of a certificate of inheritance (in chronological order)

28.  There have also been several sets of ex parte proceedings concerning the line of succession in respect of the last registered owners of the island of Uzunada. Those proceedings took place in parallel to and subsequent to the main proceedings at issue. They are set out below in the order in which they were each completed domestically. To summarise, in the first set of proceedings concerning the applicants’ request for a certificate of inheritance in respect of Helen Alfieri, the domestic court granted them a certificate of inheritance (see paragraphs 29 and 33 below). The Forest Administration and the Treasury brought a separate action (“the second set of proceedings”) in order to cancel that certificate of inheritance (see paragraphs 37 and 45 below); as a result of their request being rejected by the domestic courts, the Treasury then applied on its own (that is to say independently of the Forest Administration) for a certificate of inheritance in respect of the estate of Elino Binti Yorgaki (“the third set of proceedings” – see paragraphs 46 and 49 below). As a result of some of the developments that arose in the course of the second and third set of proceedings, the applicants lodged a request with the domestic court that had granted them the certificate of clarification (see paragraph 33 below) in the first of set of proceedings that a clarification be appended to their certificate (see paragraph 34 below). That request was allowed. However, the clarification decision was subsequently challenged by the Treasury and annulled by the appeal courts (see paragraphs 35-36 below).

(a)  The first applicant’s request for a certificate of inheritance

(i)  Original request

29.  On 23 October 2003 the first applicant lodged an application with the İzmir Magistrates’ Court in Civil Matters (Sulh Hukuk Mahkemesi – “the İzmir Magistrates’ Court”), requesting that a certificate of inheritance be issued to her in respect of the estate of Helen Alfieri. It appears that the applicant lodged the application in order to support her and the second applicant’s standing in respect of the dispute concerning the cadastral forest survey of Uzunada (see paragraphs 11-13 above) as the court hearing the case relating to the cadastral forest survey had stayed those proceedings until the issue regarding the inheritance had been dealt with.

30.  In the course of the proceedings, the İzmir Magistrates’ Court sought information from the British Consulate in İzmir concerning the applicants’ ancestor and her descendants. The court furthermore requested an opinion from the Ministry of Justice as to whether there was a reciprocal arrangement with the United Kingdom concerning foreigners’ right to acquire immovable property by way of inheritance with respect to the various dates of deaths of the original owner/testator and the successive heirs. The Ministry submitted that no such reciprocal arrangement had been in place in the years 1878, 1892, 1897, 1957 and 1982 – the years of death of the previous successors. The trial court also sought an expert opinion on the issue, and especially the chain of intestate succession to the original estate of the original owner. The expert, a professor of civil law, identified the chain of succession as follows:

-  Helen Alifieri had been survived by her husband, Anthony François Edwards (who had died in 1892) and her children, Edward Edwards (who had died in 1897) and Emily Edwards (who had died in 1918).

-  Emily Edwards (married name Murat) had had two children named Randolph and Frederic, but no information was available regarding when they had died, nor was there any record of whether they themselves had had any surviving heirs. Edward Edwards had been survived by his wife, Caroline Rodoly (who had died in 1920) and his children, Anthony Edward Edwards (who had died in 1957), Helen Edwards (who had died in 1958) and Julia Anna Edwards (who had died in 1960). Neither of Edward Edwards’ daughters had had any surviving heirs, as they had never married prior to their deaths.

-  Anthony Edward Edwards had been survived by his children, Edward Alfred Edwards (who had died in 1982), Dorothy Helen Edwards (who had died in 1996) and Ada Maria Edwards (who had died in 1988). Dorothy Helen Edwards and Ada Maria Edwards had died single and did not have any children.

-  Edward Alfred Edwards had been survived only by his daughters (that is to say the first and the second applicant) – his sole heirs.

31.  In the opinion of the expert, since Helen Alifieri had been a British subject at the time of her death, English law would have governed the intestate succession. Accordingly, he considered that on the basis of the chain of succession, the applicants were the sole heirs of Helen Alifieri, the original owner. He also noted that the British Consulate had informed the court in an information note dated 20 February 2004 that Helen Alfieri was mentioned as “Elini Binti Yorgaki” or “Eleni Georgiu Alfieri” in official records found in the Consulate.

32.  The expert also noted in his report that even if there had not been a reciprocal agreement between Turkey and the United Kingdom, that would not have prevented the applicants from obtaining a declaration from a court that they were the heirs of the original owner. In the expert’s opinion, the question of property rights and disputes concerning the original owner’s estate was an issue separate from that regarding the identification of the intestate heirs.

33.  On the basis of all the above information, on 9 February 2005, the İzmir Magistrates’ Court delivered a decision holding that the applicants were the heirs of Helen Alifieri and were entitled to equal shares in her estate until and unless proved otherwise. On 29 March 2005 the court revised the operative part of its decision at the request of the applicants to clarify that the estate of Helen Alifieri had passed on to her husband, Anthony François Edwards, through intestacy, pursuant to English law.

(ii)  Request for clarification

34.  On 15 November 2017 at the request of the applicants, the İzmir Magistrates’ Court issued a clarification in respect of its decision, noting that the name of the intestate (which had been indicated as Helen Alfieri in the decision) was Helen (Eleni) Binti, the daughter of Yorgaki (Georgiu) Alifieri, as indicated by the British Consulate in İzmir in its information note of 20 February 2004.

(iii)  Annulment of clarification

35.  On 24 September 2018 the Treasury lodged an appeal in respect of the clarification of 15 November 2017. It submitted that the question of whether immovable property could be inherited by the applicants was a question directly relevant to the proceedings ongoing before the Urla Civil Court concerning the dispute in respect of the cadastral forest survey (see paragraph 13 above) and the proceedings before the Urla Magistrates’ Court in respect of the Treasury’s application for a certificate of inheritance (see paragraphs 46-48 below). The Treasury submitted that the applicants had requested a clarification of the decision of the İzmir Magistrates Court in order to submit that clarification in the above-mentioned ongoing proceedings and that that court had therefore been in error in allowing that request.

36.  On 14 December 2018 the İzmir Regional Court of Appeals allowed the Treasury’s appeal and revoked the clarification of 15 November 2017, holding that the subject matter of the clarification was of a nature that could be disputed independently of the decision of 9 February 2005 and that it had therefore been unlawful for the İzmir Magistrates’ Court to issue the clarification. The decision of the İzmir Regional Court of Appeal was not amenable to appeal, and was therefore final.

(b)  Action for the cancellation of the certificate of inheritance issued by the İzmir Magistrates’ Court on 9 February 2005

37.  On 12 May 2005, the Forest Administration and the Treasury lodged an application against the applicants with the Urla Magistrates’ Court seeking the revocation of the certificate of inheritance issued by the İzmir Magistrates’ Court on 9 February 2005 (see paragraph 33 above). The Forest Administration and the Treasury submitted, inter alia, that the İzmir Magistrates’ Court had carried out an incomplete examination, in view of (i) the fact that it had not taken into account the lack of a reciprocal agreement between Turkey and the United Kingdom concerning the rights of foreigners to acquire immovable property and (ii) the relevant provisions of domestic law regarding the application of international private law and procedure – specifically the domestic provisions stipulating that immovable property located in Turkey was governed by Turkish law. They therefore argued that the applicants could not inherit immovable property under the applicable laws and that the İzmir Magistrates’ Court’s decision should therefore be revoked on those grounds.

38.  The applicants replied that the condition of reciprocity (that is to say reciprocal legal arrangements between Turkey and the United Kingdom), which was only relevant in respect of the respective dates of the deaths of the successive heirs of Helen Alifieri, had been satisfied.

39.  During the proceedings, the Urla Magistrates’ Court was informed that the Urla Assize Court had stayed the proceedings concerning the cadastral forest survey dispute pending the outcome of the case before the Urla Magistrates’ Court.

40.  The Urla Magistrates’ Court requested information from the Department of International Law and Foreign Affairs at the Ministry of Justice concerning any reciprocal legal arrangements in respect of citizens of the Ottoman Empire (and subsequently Turkey) in the United Kingdom in the years 1878, 1897, 1918, 1957 and 1982. In its reply, the Department of International Law and Foreign Affairs noted that Ottoman subjects could buy or inherit property in the United Kingdom in the years 1878, 1897 and 1918. It noted, however, that the United Kingdom’s 1919 Aliens Restrictions Act had prohibited individuals who were citizens of a State that had been an enemy of the United Kingdom three years prior to the enactment of the Act from acquiring immovable property in the United Kingdom. It also noted that it was not clear whether those restrictions had applied in cases of inheritance by succession. It furthermore submitted that it was also uncertain whether those restrictions had ever applied to Turkish citizens.

41.  On 10 October 2006 the Urla Magistrates’ Court appointed three professors – experts in international, civil and property law, respectively – and referred to them the question of whether the individuals whose names appeared in the land register (that is to say the previous heirs) could have inherited property in Turkey at the times of the dates of the death of the original owner and her successors. In their report submitted to the court on 27 June 2007, the experts noted that for foreigners to acquire immovable property in the Ottoman Empire, three conditions had to be satisfied under Ottoman laws enacted in 1867 – specifically, the Expedition Act (Sefer Kanunu). Firstly, the property in question had to be outside the “holy lands” (hicaz toprakları – that is to say areas in present-day Saudi Arabia, such as Mecca and Medina). Secondly, there had to be an agreement in place between the Ottoman Empire and the State of which the foreigner in question was a citizen concerning the extent of the latter party’s right to acquire property in the Ottoman Empire. Lastly, the foreigner in question should not have renounced Ottoman citizenship without permission. According to the experts it was clear that the United Kingdom and the Ottoman Empire had signed an agreement in 1868 concerning the acquisition of property in the Ottoman Empire by British citizens. According to two of the experts on the panel, the Expedition Act did not require the existence of such a reciprocal agreement as an additional condition for foreigners to acquire property in the Ottoman Empire. According to those experts, the conditions laid out in the Expedition Act remained in force until the Treaty of Lausanne of 1923. They furthermore noted that Helen Alifieri’s estate had not included any property in the “holy lands”. Those two experts therefore considered that all the conditions for the acquisition of immovable property had been satisfied in respect of both the original owner and her successors. The third expert on the panel disagreed with the findings of the other experts. He considered that the existence of a reciprocal agreement had been a sine qua non for foreigners seeking to acquire immovable property in the Ottoman Empire and that that condition could not have been satisfied during the years 1914-1918 owing to the First World War and the above-mentioned 1919 Aliens Restrictions Act. Given that Emily Edwards had died in 1918, it followed, according to that expert, that her heirs could not have inherited her estate.

42.  The Forest Administration and the Treasury in their final submissions to the court argued that the original owner in respect of Uzunada had not been Helen Alifieri but Elina Binti Yorgaki, which was the name that appeared on the relevant land Registry documents. They therefore submitted that there had been no link between the certificate of inheritance and the land Registry document in respect of Uzunada.

43.  On 6 April 2011 the Urla Magistrates’ Court dismissed the application of 12 May 2005, holding that the Forest Administration and the Treasury had no standing to request the revocation of the certificate of inheritance in view of the fact that they were not the legal heirs of the original owner, Helen Alifieri. As regards the argument of the Forest Administration and the Treasury that the İzmir Magistrates’ Court had conducted an incomplete examination of the matter in so far as (i) the matter concerned immovable property but the examination conducted by that court had nevertheless taken into account only consular documents and (ii) the court had applied the law incorrectly by overlooking the provision set out in section 22 of the Turkish Private International Law and Procedures Act (Law no. 2675) – namely that Turkish laws applied to immovable property located in Turkey – the Urla Magistrates’ Court noted that the land Registry documents had been issued in respect of Elina Binti Yorgaki, as the original owner of the island, but that the certificate of inheritance contested by the Forest Administration and the Treasury had not been issued in respect of that individual. In that connection the Urla Magistrates’ Court considered that the certificate of inheritance challenged by the Forest Administration and the Treasury had mentioned Anthony Edwards and Helen Eleni Alifieri only.

44.  On 17 November 2011 the Court of Cassation dismissed an appeal lodged by the Forest Administration and the Treasury.

45.  On 15 March 2012 the Court of Cassation dismissed an application made by the Forest Administration and the Treasury seeking a rectification of its decision of 17 November 2011, holding that the Forest Administration could not make a case for the revocation of a certificate of inheritance unless it had been designated as an heir in that certificate or authorised by another court to bring such proceedings. Since the Urla Assize Court had not authorised the Forest Administration to bring such proceedings and since it had not been named as an heir in the certificate, it had overstepped its authority.

(c)  The Treasury’s request for a certificate of inheritance

46.  On 16 August 2012 the Treasury lodged an application with the Urla Magistrates’ Court requesting that a certificate of inheritance be issued to the State concerning the immovable property registered under the name of Elina Binti Yorgaki. It argued that the Ottoman-era “enumeration records” (yoklama kağıtları) indicating Elina Binti Yorgaki as the owner of the immovable property were over a hundred years old and that nobody had claimed ownership of the island on the basis of those records. The Ministry of Defence intervened in the proceedings in favour of the Treasury.

47.  The applicants intervened in the proceedings and contested the Treasury’s application, relying on the certificate of inheritance issued to them by the İzmir Magistrates’ Court (see paragraph 33 above) and also on the judgment of the Urla Magistrates’ Court of 6 April 2011 dismissing the same claim (that is to say the application to be recognised as the legal heir of Helen Alifieri, see paragraphs 37 and 45 above) that had been brought by the Treasury previously.

48.  On 30 November 2016 the Urla Magistrates’ Court ruled that the State was the sole heir in respect of the immovable property in question. Firstly, the first-instance court reasoned that it could not be proved that Elino Binti Yorgaki, in whose name the enumeration record had been drafted and whom the applicants had asserted as the original owner, had been the same person as Helen Alifieri, who was indicated as the intestate in the certificate of inheritance submitted by the applicants. Secondly, and more importantly, the court held that according to the archival records of the Directorate, Elino Binti Yorgaki had been an Ottoman subject at the time of her acquisition of the property in question and that it had not been possible under the Ottoman laws at the relevant time for an Ottoman subject to bequeath property to foreign nationals. For that reason, the court ruled that Elino Binti Yorgaki could not have legally bequeathed immovable property to her husband, Anthony François Edwards, who had not been of Ottoman citizenship.

49.  On 18 April 2018 the decision became final following the dismissal by the İzmir Regional Court of an appeal lodged by the applicants.

(d)  Application by the applicants for the issuance of a certificate of inheritance

50.  On 8 June 2018 the applicants lodged an application with the İzmir Magistrates’ Court requesting that it issue them a certificate of inheritance in respect of Anthony Edward Edwards, their grandfather.

51.  On 26 February 2019 the court issued the applicants with a certificate of inheritance attesting that they were entitled to equal shares in the late Anthony Edward Edwards’ estate.

B.  Relevant domestic law and practice

1.  Law on Cadastral Matters (Law no. 3402)

52.  The purpose of the Law on Cadastral Matters, which entered into force on 9 October 1987, was the creation of the present-day land register (as required by the Civil Code) by determining the legal status of properties and their precise boundaries on the basis of topographical maps.

53.  The designation of areas where a cadastral survey is to be carried out, the manner of announcing such a survey, and the consequences of such an announcement are set out mainly in sections 2, 4, 7, and 10-12 of Law no. 3402, which provide, in so far as relevant, as follows:

Section 2

Determination of Cadastral Districts and Announcement

“...

Districts where a cadastral survey will be carried out shall be announced at least one month in advance in the Official Gazette, on radio or television and in the local newspaper, where applicable, and also by conventional methods of announcement [that are customary] in the place in question.”

Section 4

Cadastral area – Announcement – Opposition

“Each village in the cadastral area and each neighbourhood within the boundaries of a municipality shall itself constitute a [sub-]cadastral area.

The manager of a cadastral survey shall announce by conventional methods in the area to be surveyed – as well as in its regional centre and in the neighbouring villages and neighbourhoods [outside that cadastral area]) – at least fifteen days before ... that the survey is to be carried out.

...

In the determination of the boundaries of the cadastral survey area, the cadastral team takes into account municipal and village boundaries. Those boundaries shall not replace the administrative boundaries of municipalities, neighbourhoods or villages.

In the determination of boundaries, information and documents relating to neighbouring villages and neighbourhoods are taken into account.

Boundaries as determined by the cadastral team are reflected on the [cadastral] maps

...

Opposition to the [demarcation] of a cadastral survey area may be lodged with the Cadastral Office within seven days [of the announcement].

The cadastral manager shall announce his or her decision with respect to [any such] opposition within seven days. The persons concerned may [then] bring proceedings before a cadastral court within seven days of the date on which that decision is issued. The cadastral court shall examine the [grounds for such] opposition without holding a hearing, but if necessary [it may] carry out an on-site inspection. It shall deliver a decision within fifteen days of the bringing of proceedings. The decision shall be final.

...”

Section 7

Establishing the boundaries of immovable property

“Cadastral survey staff examine and apply the maps, land-register and tax records, and other documents in the presence of interested persons and owners of the property [in question] and in the presence of at least three experts and the village headman (muhtar). In respect of each immovable property, cadastral survey staff should prepare a report in which they record the information they have gathered and the impressions they have gained. They then draw the boundaries of the immovable property and determine who the respective rightholders are. Boundaries shall be indicated on the cadastral map or on enlarged photographs or sketches; contentious borders should be referred to separately.

...

Where a [dissenting legal] claim is made in respect of (immovable properties within or adjacent to the cadastral area regarding which no cadastral document has been issued or in respect of immovable properties that are located entirely outside the cadastral area [in question], [and it is argued those properties] should be subject to a cadastral survey, [that claim] shall be documented by marking [on the relevant documents and maps] the necessary demarcations and determinations and forwarded to the cadastral commission.

Section 10

“The cadastral commission shall examine disputed documents referred to it, providing reasoning [for its decision] at the latest one month from the date of referral and [in any event] by the time that cadastral survey work have been finalised.

[The commission] shall replace the old document by issuing a new document that determines the rightholder [in question] ...

No witnesses [contesting the documents] shall be heard. [All the members of] the commission shall convene and [it] shall determine its decision by a majority vote. Its conclusions shall be disseminated by way of public announcement.

The commission shall forward the dispute to the cadastral courts in the event that the resolution of the dispute falls within the latter’s jurisdiction or where the dispute cannot be resolved on the basis of documents that have equal weight and [evidentiary] value.”

Section 11

“The manager of a cadastral survey shall ... post the conclusions of the cadastral commission in [the cadastral office] and the residence of the village muhtar for a period of thirty days; [those conclusions should] contain a notice that any [legal] complaint [regarding those conclusions] should be lodged directly with the cadastral courts during the announcement period.

The manager shall announce the conclusions of the cadastral commission no later than three months after the completion of the cadastral commission’s work.

...

Announcements made in accordance with this law shall count as personal notification in respect of real and legal persons.”

Section 12

Finalisation of cadastral records and limitation period

“Boundaries and findings indicated in cadastral records become final at the end of the thirty-day announcement period, unless proceedings are brought in a court of law.

Cadastral records which thus become final, and the final decisions of cadastral courts, shall be recorded in the land register no later than three months after the date on which they became final.

Boundaries, findings and rights recorded in those final records cannot be contested after the passage of ten years from the date on which they become final on the basis of rights or claims that had existed prior to the [relevant] cadastral survey.

Old land Registry records that relate to an immovable property within the boundaries of the cadastral survey area shall lose their validity when the cadastral survey work is completed in that area. No request can be lodged with the cadastral and land Registry offices on the basis of such records.

... ”

54.  The relevant parts of sections 13 and 14 of Law no. 3402, as in force at the time in question, set out the conditions for registering property in the land register as follows:

Section 13

“In respect of immovable property registered in a land register:

A)  If the persons under whose name it is registered, or his or her successors (provided that they are in possession of the property):

a)  In the name of the person under whose name it is registered,

b)  If the former has passed away, in the names of his or her heirs,

c)  If the heirs cannot be identified, in the name of the original owner (with an annotation noting the fact that he or she is dead).

B)  If someone other than the registered owner or his or heirs is in possession of the property:

a)  In the name of the possessor, provided that the registered owner or his or her heirs have given their consent [thereto] before a member of the cadastral survey staff,

b)  In the name of the possessor, provided that he or she has been in possession of the property in an uncontentious and continuous manner for at least ten years and that he or she can prove that that property was acquired from the registered owners or [their] heirs [by means other than registration of a change of ownership] in the land register,

c)  In the name of the possessor, [provided that he or she] has possessed the property in a peaceful and uncontentious manner for at least twenty years, in any of the following cases: if the registered owner died twenty years ago, or has been declared or presumed dead, or it cannot be determined from the land register who the owner is.

...”

Section 14

“An unregistered property with a surface area of up to 100 hectares consisting of dry land or up to 40 hectares consisting of wetland within a given cadastral area may be registered in the land register in the name of a possessor who can prove uncontentious and continuous possession by means of documents, witness statements or expert testimony.

...”

55.  Section 16 governs public property and property belonging to the State or State organs. Accordingly, places that are regarded as the property of the State and come exclusively under its jurisdiction – such as rocks, hills mountains, rivers and seas and lakes – are not, with some exceptions, subject to cadastral demarcation. On the other hand, places such as pastures and meadows designated for public use or those that have always been at the public’s disposal are subject to cadastral demarcation and are recorded at a Registry designated for that purpose. Lastly, State property and official buildings constructed on such property are registered in the land register in the name of the Treasury, along with that of the public body or municipality for whose use it has been designated.

56.  Section 22, which bears the heading “places where cadastral survey work has been previously carried out” originally provided that a cadastral survey would be carried out in respect of places which were registered in a land register or belonged to public authorities and which had been left outside the cadastral demarcation during a previous cadastral exercise. As of 22 February 2005, owing to an amendment made to that provision, a cadastral survey may no longer be requested in respect of a place which has been registered in a land register but which had been left outside the relevant cadastral demarcation boundary during a previous cadastral exercise. It appears that such a request can only be made in respect of places owned by public authorities.

57.  Provisional section 4 (4) provided that a cadastral survey would be carried out in accordance with the provisions of Law no. 3402 upon a request lodged by holders of land Registry documents relating to property that had been left outside the cadastral demarcation boundary in areas where land registration and cadastral surveys had been previously carried out.

2.  Circular no. 1495 concerning immovable properties left outside cadastral demarcation boundaries

58.  On 28 March 1989 the Directorate issued a circular (Circular no. 1495 – “the Circular”) regarding the conditions to be fulfilled in the application of section 22 and provisional section 4(4) of Law no. 3402. One of the conditions that had to be met in order for a holder of a title deed to be able to request that a cadastral survey be carried out in respect of the property that had been left outside the cadastral demarcation during a cadastral survey was that that holder must be in actual possession of the property in question.

59.  The Circular furthermore provided that in the event that the relevant claimants did not meet the conditions set out in the Circular, they should be asked to institute proceedings in a court of law, in accordance with general provisions.

3.  Jurisdiction of cadastral courts

60.  Cadastral courts have exclusive jurisdiction to examine disputes relating to cadastral surveys and cadastral documents. Their jurisdiction ratione temporis starts when a cadastral document is prepared in respect of a property. Their jurisdiction ratione materiae covers disputes relating to, inter alia, the legal status or boundaries of a property prior to the situation before a cadastral survey is carried out and before disagreements arose regarding cadastral documents. They do not therefore have jurisdiction ratione materiae concerning rights and legal relationships that arise after the cadastral survey in question is completed (sections 25 and 26 of Law no.  3402), and nor do they have authority to rule on disputes about immovable property after the relevant cadastral survey or document becomes definitive. Such disputes fall under the authority of the civil courts of general jurisdiction.

4.  Relevant provisions of the Civil Code

61.  The acquisition of immovable property is only possible by registration in the land register. In certain cases, such as intestacy or occupation or expropriation, title to immovable property is acquired before registration; however, in such cases the full enjoyment of property rights – including the power to dispose of rights in rem over the property in question – is conditional on the registration of that property in the land register (Article 706 of the Civil Code; Article 633 in the former Civil Code).

62.  If an immovable property is not recorded in the land register, the possessor could acquire the ownership of such property by adverse possession, provided that he or she possesses the property in a continuous and non-contentious manner for a period of twenty years (Article 713 § 1 of the Civil Code and Article 639 of the former Civil Code). A full description of the relevant domestic law and practice regarding this issue may be found in İpseftel v. Turkey (no. 18638/05, §§ 20-36, 26 May 2015).

5.  Relevant judicial practice

63.  The Government submitted the following case-law examples, which they deemed relevant for their submissions:

a.  Application for registration concerning immovable property that has been left outside the relevant cadastral demarcation boundary

64.  In a case brought by an individual concerning a claim of adverse possession in respect of a property that had been left outside the relevant cadastral demarcation boundary, the Court of Cassation noted that since there was no cadastral record in respect of property that had been left outside the cadastral demarcation boundary, an application for registration on the basis of adverse possession that commenced prior to the start of the cadastral survey in question was not subject to a time-limit at all – let alone the ten year time-limit set out in section 12(3) of Law no. 3402 (decision of 18 April 2013, E.2013/4051, K. 2013/4014).

65.  In cases that concerned claims of adverse possession in respect of immovable property, the Court of Cassation noted that the accuracy of land Registry records, among other documents, should be checked on the ground by experts who were familiar with the boundaries that were in de facto use.

b.  Advisory opinion of the Supreme Administrative Court on the application of the amended version of section 22 in conjunction with provisional section 4 of Law no. 3402

66.  The Supreme Administrative Court issued an advisory opinion with respect to an enquiry made by the Prime Minister’s office regarding whether provisional section 4 of Law no. 3402 was still relevant or applicable in the wake of a February 2005 amendment to section 22 of the same law which provided that a cadastral survey could be carried out in respect of places owned by public authorities and which had been left outside the relevant cadastral demarcation boundary in a previous cadastral survey. The Supreme Administrative Court noted that section 22 was applicable to cadastral surveys carried out after the entry into force of Law no. 3402, whereas provisional section 4 governed transitional measures that were relevant to the earlier Law no. 766. It therefore followed that if a certain area was left outside the cadastral demarcation boundary during the period in which Law no. 766 had been in force, right holders (provided that certain conditions were fulfilled) could ask that a cadastral survey in respect of immovable property be carried out, in accordance with the provisions of Law no. 3402. By contrast, if an area had been left outside of the cadastral demarcation boundary during a cadastral survey carried out in accordance with Law no. 3402, it was no longer possible, in the wake of the changes of February 2005, for a private right holder to request a new cadastral survey.

In conclusion, the Supreme Administrative Court opined that the two provisions remained in force and were applicable to different situations.

6.  Declaratory judgment

67.  In their submissions the Government submitted examples of the Court of Cassation’s case-law in order to illustrate how the purpose of a declaratory judgment was understood and had been developed by that court in respect of civil matters within the Turkish legal context.

68.  Accordingly, the Government submitted, in Turkish civil proceedings, an action for a declaratory judgment could only be instituted in order to establish the existence or non-existence of a legal relationship. It followed that a declaratory judgment could not be sought for the sole purpose of establishing facts or evidence that could be examined in the course of an action for performance. For that reason, the established jurisprudence of the Court of Cassation did not seem to permit claimants to bring a declaratory action in cases where an action for performance could be brought. The relevant case-law in that respect held a claimant had to have a specific legal interest in bringing an action for a declaratory judgment, which he or she could not obtain by bringing another type of action.

COMPLAINT

69.  The applicants complained under Article 6 of the Convention that none of the domestic courts had examined their request for the determination of the cadastral status of the island and for the Directorate to be compelled to carry out a cadastral survey. For that reason they complained that they had been denied access to a court.

THE LAW

70.  The Court notes the applicant’s complaint referred to in the preceding paragraph, which was made under Article 6 § 1 of the Convention, the relevant parts of which read as follows:

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

A.  The submissions of the parties

1.  The Government’s submissions

71.  As a preliminary objection, the Government raised doubts about the validity of the powers of attorney submitted by the applicants. Having regard to the applicants’ dates of births and the period of time that had elapsed since the application had been lodged, the Government requested that an updated power of attorney be submitted. In the event that such a power of attorney could not be submitted, it asked the Court to strike the application out of its list of cases.

72.  Regarding the applicability of Article 6 § 1 to the dispute, the Government considered that the application that the applicants had lodged with the domestic courts for the Directorate to be compelled to carry out a cadastral survey of the island had not concerned a civil right, given that the State had the sovereign power to decide whether or not and when to carry out a cadastral survey in any given area. They therefore considered that the application was incompatible ratione materiae with the provisions of the Convention.

73.  In any event, the Government submitted that the applicants had failed to exhaust the relevant domestic remedies. They argued firstly that the applicants had failed to lodge an appeal against the İzmir Administrative Court’s lack of jurisdiction decision (see paragraph 18 above). In their view, that administrative court had erred in deeming that the dispute in question fell within the jurisdiction of cadastral courts, while in fact the jurisdiction of the latter started only with the drafting of a cadastral document in respect of immovable property. They argued in that respect that leaving an area out of a cadastral demarcation boundary for the purposes of a cadastral survey was clearly a cadastral decision; however, since such a decision did not determine the boundaries of the immovable property in question, no cadastral record could be prepared in respect of it. Since there had been no such document in respect of Uzunada, cadastral courts had not had authority to hear the dispute. As a result, it also followed, according to the Government, that the applicants had failed to comply with the six-month rule, having regard to the fact that the İzmir Administrative Court’s decision had become final without the applicants appealing against it. Since the decision of the Administrative Court had been communicated to the applicants on 5 July 2005 and had become final upon the lapse of the thirty-day appeal time-limit, the six-month time-limit for lodging an application with the Court had commenced on that date, yet the applicants had only lodged their application with the Court on 26 July 2007, which meant that it had been belated.

74.  Thirdly, the Government argued that the applicants had had no legal interest in bringing a declaratory action, given that an action for performance concerning the registration of the land in question under their names would have constituted an appropriate remedy but they had failed to make use of it. They contended in that regard that an application for registration under section 14 of Law no. 3402 and Article 713 of the Civil Code was not subject to a time-limit and that the applicants could therefore still make use of that remedy.

75.  The Government moreover considered that for almost 150 years no member of the applicants’ family had come forward to claim rights on the basis of the land Registry records and that the applicants’ rather sudden interest in the island was therefore odd.

76.  In the light of the latest domestic court judgment, the Government furthermore argued that the applicants lacked victim status, since their alleged relationship to the person registered as owner in the enumeration records had not been recognised by the domestic courts (see paragraph 48 above).

2.  The applicants’ submissions

77.  Regarding the applicability of Article 6 § 1 to the dispute, the applicants contended that the core of the dispute concerned their right to obtain information about the cadastral status of Uzunada and to furthermore request that the Directorate carry out a cadastral survey of the area in which their property was located. The applicants submitted that the domestic law – in particular section 22 before the amendment of 2005 and provisional section 4 of Law no. 3402 – recognised their right to request that a cadastral survey be carried out in respect of Uzunada, since they had land Registry records in respect of the immovable property in question. They argued that during the requested cadastral survey of the land, these records would necessarily have to be taken into consideration and would thus eventually lead to the registration of the property in their names in the current land register. According to the applicants, the outcome of the dispute was therefore directly decisive for their ability to fully enjoy their rights in respect of their property. Without a cadastral survey of the island, the exact boundaries of the area owned by the applicants would remain unknown and the land could not be registered under their names in the current land register. On the basis of the same arguments, they maintained that the title deeds that they held in respect of the island were not worth as much as they would be if they corresponded to the current land register.

78.  The applicants also disagreed with the Government’s submissions that Uzunada had been included in the cadastral survey area of Güvendik, Urla District, but had been left outside of the cadastral demarcation boundary in 1977. The applicants submitted that the Government had not been able to furnish evidence – such as cadastral records documenting the fact that Uzunada had been left outside the cadastral demarcation boundary or an indication of such exclusion in a boundary map – to the Court to that end. Relying on section 4 of Law no. 3402 the applicants argued that the boundaries of a cadastral survey area should be recorded on a boundary map, which should be announced to the public so that interested persons could lodge objections within the relevant time-limit. Moreover, all cadastral survey work carried out in that area, including the act of leaving an area (within the boundaries of the cadastral survey area) outside the cadastral demarcation boundary would need to be officially recorded and announced in order to enable the owners of title deeds or related persons to raise objections to it.

The applicants submitted that despite having brought proceedings in civil and administrative courts, the authorities had not been able to present those courts with evidence concerning the cadastral status of Uzunada. The applicants furthermore argued that the Government’s submissions to the Court been inconsistent, as they had submitted that Uzunada had been included within a cadastral-area map but had been left outside the cadastral demarcation boundary in 1977, whereas the documents dated 19 April 2018 from the İzmir Directorate of Title Deeds with which they had furnished the Court had stated that a cadastral survey of Uzunada had been planned at different times but that it had never been possible to carry it out owing to the island being a military zone.

79.  As regards the question of whether the applicants could have secured the determination of the dispute by lodging an application for registration (as opposed to a declaratory action), they replied that such an action would only have been necessary if, as the Government asserted, Uzunada had been included in the cadastral survey area within Urla in 1977. However, the applicants considered that since there was no evidence for that premise, the application for registration would be redundant and that the State was under an obligation to eventually carry out a cadastral survey, pursuant to section 2 of Law no. 3402. Furthermore, the applicants contended that given the fact that they had acquired ownership of the property through intestacy there was no need for them to lodge an application for registration in order to establish ownership, as title to property was gained at the moment when the owner in question died.

80.  Regarding the question of why they had not taken any action in respect of their claims on the island for many years, the applicants replied that their ancestors had benefited from the island mainly by renting it to local farmers until 1914, when it had been occupied by the Ottoman armed forces. They submitted translations of various documents, such as rent agreements signed by Edward Edwards, in Ottoman Turkish.

81.  Concerning their failure to appeal against the decision of the İzmir Administrative Court of 8 June 2005, the applicants argued that they had had the choice of lodging an appeal with either the Urla Cadastral Court or the Supreme Administrative Court, and that they had simply exercised their right of choice and taken the case to the Urla Cadastral Court. The applicants also contended that upon reflection, they believed that it was the administrative courts that had probably had authority to review the dispute but that the wording of İzmir Administrative Court’s decision had misled them.

B.  The Court’s assessment

1.  The Government’s preliminary objection

82.  The Court notes that where applicants are represented, pursuant to Rule 45 § 3 of the Rules of Court a power of attorney or written authority to act must be supplied by their representative. The Court observes that in respect of the present application, in response to the Government’s preliminary objection, on 31 May 2018 the applicants’ representative submitted an updated written authority to the Court, which had been signed by the applicants.

83.  In view of the above, the Court concludes that the requirements of Rule 45 § 3 of the Rules of Court have been satisfied. The procedural issue raised by the Government has therefore been resolved.

2.  Scope of the case before the Court

84.  Having regard to the parties’ submissions, the Court considers it necessary to clarify at the outset the scope of the case before it. It observes that in their application, the applicants complained of a violation of Article 6 of the Convention, which in their view followed from the judgments delivered on 8 June 2005 by the İzmir Administrative Court (see paragraph 18 above) and on of 23 May 2006 by the Urla Cadastral Court (see paragraph 21 above) declining to examine their request for the island of Uzunada to be surveyed. After the introduction of the application, the applicants applied to the Court of Jurisdictional Disputes (see paragraph 23 above) and to the Urla Civil Court for a declaratory action (see paragraph 25 above). They informed the Court within the six-month time-limit of the unsuccessful outcome of those proceedings and reiterated their complaint regarding an alleged violation of their right of access to a court with respect to the determination of Uzunada’s cadastral status. Therefore, all those proceedings are within the scope of the Court’s review. Information submitted by the parties in respect of further developments regarding the dispute related to the certificate of inheritance are relevant for understanding the overall context of the case, but are not as such the subject matter of the present application. In any event, the applicants have not introduced a complaint before the Court concerning those developments.

3.  Alleged violation of Article 6 § 1 of the Convention

85.  The Court considers that it is not necessary to address all the Government’s objections, since the complaint is in any event inadmissible, for the following reasons.

a.  General Principles

86.  The Court refers to its well-established case-law to the effect that the applicability of the civil limb of Article 6 § 1 requires the existence of “a dispute” over a “civil right” that can be said, at least on arguable grounds, to be recognised under domestic law (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 84-90, 29 November 2016). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question – mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see, among many other authorities, Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015; Lupeni Greek Catholic Parish and Others cited above, § 71; and Regner v. the Czech Republic [GC], no. 35289/11, § 99, ECHR 2017).

87.  It is important to emphasise, as the Court has on several occasions, that Article 6 § 1 does not guarantee any particular content for those civil “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right that has no legal basis in the State concerned (see, inter alia, Lupeni Greek Catholic Parish and Others, cited above, § 88, with further references).

88.  In order to decide whether the “right” in question really has a basis in domestic law, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see, inter alia, Károly Nagy v. Hungary [GC], no. 56665/09, § 62, 14 September 2017). The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is limited to verifying whether the effects of such interpretation are compatible with the Convention. That being so, save in the event of evident arbitrariness, it is not for the Court to question the interpretation of the domestic law by the national courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-50, 20 October 2011). Thus, where the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction [on access to a court], on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons for differing from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law and by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Károly Nagy, cited above, § 62).

89.  Lastly, the Court reiterates that Article 6 of the Convention does not guarantee a litigant a favourable outcome (see, among others, Andronicou and Constantinou v. Cyprus, 9 October 1997, § 201, Reports 1997-VI, and Aalto and Others v. Finland (dec.), no. 12809/09, 23 March 2010).

b.  Application to the present case

90.  The Court reiterates that in the present case the applicants considered that there had been no evidence that Uzunada had ever been subject to a cadastral survey or included in a boundary map of a cadastral survey and that because of that the domestic authorities were under an obligation to conduct a cadastral survey of the island. They relied on section 22 of Law no. 3402 (before the February 2005 amendment thereto) and provisional section 4 of the same law. The applicants tried to enforce that obligation by bringing several sets of proceedings before the domestic courts. In the proceedings in which the applicants requested the Directorate to carry out a cadastral survey of the island, the domestic courts declined to examine the case on the merits. It can be seen from their reasoning that they considered the applicants’ claim for the Directorate to be compelled to carry out a cadastral survey not to be an actionable claim. The applicants then brought a declaratory action for the issuance of a judicial declaration determining the cadastral status of the island. The domestic courts in those proceedings also dismissed the action for the applicant’s lack of any legal interest in bringing a declaratory action, in view of the fact that they could secure the determination of the cadastral status of the island by bringing an action for performance. The Court will examine separately the applicants’ complaints in respect of each of the two sets of proceedings.

Proceedings concerning the request for a cadastral survey of the island to be carried out

91.  With respect to the proceedings before the İzmir Administrative Court, the Urla Cadastral Court and the Court of Jurisdictional Disputes in which the applicants sought for the Directorate to be compelled to carry out a cadastral survey of Uzunada, the Court has to decide whether a “genuine and serious dispute” over a “right” existed such as to attract the applicability of Article 6 to those proceedings. In this connection, the Court must have regard to the wording of the relevant legal provisions and to the way in which those provisions were interpreted by the domestic courts.

92.  The Court notes that the applicants instituted the above-mentioned proceedings with a view to obtaining a cadastral survey of Uzunada. Both the İzmir Administrative Court and the Urla Cadastral Court declined to examine the claim on the merits. However, neither those courts nor the Court of Jurisdictional Disputes analysed in a comprehensive manner whether the “right” claimed by the applicants was recognised under domestic law. Thus, given that the domestic courts did not address this question, and in the absence of a jurisprudential precedent to the effect that no such arguable right existed under domestic law, the Court is unable to conclude that the dispute about the existence of the “right” asserted by the applicants was not genuine and serious.

93.  Moreover, the Court considers that the legal provisions relied on by the applicants in the domestic proceedings and the Supreme Administrative Court’s advisory opinion regarding those provisions seem to support the contention that there existed at least an arguable basis within the domestic context (provided that certain conditions be fulfilled) for a request that the authorities carry out a cadastral survey of an area that had been left outside the cadastral demarcation boundary in a previous cadastral exercise. Before the amendment of February 2005 to section 22 of Law no. 3402, it could be argued that regardless of the cadastral law that had been in force at the time when an area had been left outside the cadastral demarcation boundary, anyone, by relying on a land Registry document, could request that a cadastral survey of that area be carried out. After the amendments of February 2005, that possibility was no longer available to private persons if the act of leaving the area outside the cadastral demarcation boundary had been carried out pursuant to Law no. 3402. The Court also notes the response given to the applicants by the Directorate in respect of the cadastral status of the island. According to the Directorate, no cadastral survey has been conducted on the island because it had been left outside of the cadastral demarcation boundary in 1977 (see paragraphs 15 and 16 above). The applicants allege that the Directorate’s response in itself is insufficient because it is not substantiated by supporting evidence. The applicants have also submitted that even if Uzunada had been left outside the cadastral demarcation boundary (as has been argued by the domestic authorities), they nevertheless had a right to request a cadastral survey but that the courts declined to recognise and give effect to that right.

94.  In view of the above, the Court is prepared to accept that the impugned proceedings were related to a civil right recognised in domestic law, that is to say, the property right claimed by the applicants. What remains to be assessed is whether, had those proceedings determined the merits of the dispute – which concerned the applicants’ request for a cadastral survey to be carried out – they would have been directly decisive in respect of the civil right asserted by the applicants, that is to say the right to have the title to the land registered in their name. In carrying out this assessment it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50; Roche, cited above, § 121; and Boulois, cited above, § 92).

95.  In that respect, the Court cannot but note that the reason the applicants instituted the above proceedings – and not some other type of proceedings, such as an application for the registration of the property in question – is because they argued that they had inherited the island from the persons whose names were last registered in the land Registry documents and that only through a cadastral survey would their alleged property rights be recognised. The applicants also argued that an application for registration was not necessary in their case.

96.  The Court notes that had the domestic courts determined the dispute on the merits, the outcome would not have been directly decisive for the applicants’ property claims in respect of the island. That is because such an outcome would not have resulted in the recognition of those property claims but only in either the recognition or non-recognition of the existence of circumstances allowing or mandating a cadastral survey to be carried out on the island. In either scenario, the applicants would have been required to take further steps or actions in order to assert property rights.

97.  Therefore, the first set of domestic proceedings brought by the applicants could not have resulted in a determination of their civil rights and obligations, and it cannot be said that the outcome of those proceedings was directly decisive in respect of such rights and obligations.

98.  It follows that the complaint in so far as it relates to the proceedings before the İzmir Administrative Court, the Urla Cadastral Court and the Court of Jurisdictional Disputes is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected, in accordance with Article 35 § 4.

Proceedings concerning the declaratory action regarding the cadastral status of Uzunada

99.  The applicants assert that their inability to obtain reliable information concerning the cadastral status of the island prevents them from taking the correct course of action. In their view, if it is proved that Uzunada was included in the cadastral-area map but was left outside of the cadastral demarcation boundary, they could, by relying on their land Registry records and their certificate of inheritance, request that a cadastral survey be carried out under provisional section 4 of Law no. 3402. On the other hand, if Uzunada has never been included in a cadastral-area map, then they submit that they do not need to take any action, as eventually the public authorities will be obliged to carry out a cadastral survey of the island. For this reason they maintain that they had sufficient legal interest in bringing a declaratory action before the domestic courts.

100.  The Court notes that the applicants requested the domestic courts to declare that Uzunada had not been subject to a cadastral survey. The domestic courts deemed that request to constitute a request to have a fact established, and decided that such a request could not be the subject of a declaratory action. The applicants maintain that their inability to obtain reliable information with respect to the cadastral status of the island prevents them from taking the correct course of action to secure their property interests. Accordingly, the Court must determine whether the declaratory action brought by the applicant fell within the scope of Article 6 § 1 of the Convention. In that connection, the Court reiterates that it is the right as asserted by the claimant in the domestic proceedings that must be taken into account in order to assess whether Article 6 § 1 is applicable (see Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12 § 120, ECHR 2013 (extracts)).

101.  The Court also reiterates that the applicability of Article 6 of the Convention in civil matters first and foremost depends on the existence of a dispute. The dispute itself must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law.

102.  Turning to the declaratory judgment proceedings at issue, the Court notes that the applicants called on the domestic courts for a finding of fact with respect to the cadastral status of Uzunada. Notwithstanding the fact that this type of assessment does not constitute a permissible reason for bringing a declaratory action under domestic law (see paragraph 68 above), the Court notes that the declaratory judgment proceedings brought by the applicants did not involve a “dispute over a right” within the meaning of Article 6 § 1 of the Convention. In that connection, it can be discerned from the way in which the applicants framed their request to the domestic courts that they separated the question of the cadastral status of Uzunada from their property claims in respect of the island. However, a dispute, for the purposes of Article 6 § 1 of the Convention, implies a disagreement that raises questions going to the existence, scope or the manner of exercise of a right or an obligation. While such a disagreement may involve questions of fact and questions of law, the dispute itself must either be based on or related to a right or obligation. It therefore follows that a controversy or disagreement surrounding a fact may not alone be the subject matter of a dispute, as understood by the Convention, nor could such a disagreement be said to “determine” a civil right or the obligations of a party.

103.  Therefore, the declaratory judgment proceedings in question, which were concerned only with the determination of a fact, did not attract the application of Article 6 § 1 of the Convention, since they did not determine, or give rise to, a dispute as to the applicants’ civil rights or to the State’s obligations for the purposes of Article 6 § 1. Accordingly, this part of the application is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 September 2020.

Stanley NaismithJon Fridrik Kjølbro
RegistrarPresident

[1] Elino Binti Yorgaki is sometimes spelt as Elina Binti Yorgaki or Yorgoki in the domestic proceedings Similarly, Helen Alfieri is sometimes spelt as Helen Alifieri The Court has kept to the spelling variations corresponding to the domestic proceedings.

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