AS TO THE ADMISSIBILITY OF
Application No. 25128/94
by Kamil Naim KUMASÇI
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 december 1993
by Kamil Naim Kumasçi against Turkey and registered on
13 September 1994 under file No. 25128/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1932, is a Turkish citizen and resident
in Istanbul.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant was one of four co-owners of a plot in Istanbul.
On 26 May 1985 the applicant and the other co-owners concluded a
contract with an entrepreneur, according to which the latter undertook
to construct a building comprising shops and offices. The entrepreneur
would divide the shops and offices into two sections on completion of
the construction one of which the co-owners of the land could choose
for themselves while the other group would fall to the entrepreneur.
The entrepreneur, after having completed the building, divided
it into two groups of shops and offices and notified the co-owners.
Three of them chose one of the two groups, but the applicant objected
both to the choice of the other three and to a proposal for division
made by the entrepreneur since the two sections were not equal.
On 9 July 1991 the applicant filed an action with the Civil
Justice of the Peace in Istanbul requesting the equal division of the
54 shops and offices between the co-owners and the entrepreneur.
The Civil Justice of the Peace appointed three experts who
submitted a report proposing two new groups of shops and offices to the
Civil Justice of the Peace.
On 25 June 1992 the Civil Justice of the Peace held that the
shops and offices built by the entrepreneur should be given to the
parties and be registered at the land registry in accordance with the
report prepared by the experts. The Civil Justice of the Peace
considered that the applicant's requests implied termination of the co-
ownership. In this regard he held that the co-ownership should be
terminated in proportion to the shares of the co-owners.
On 2 October 1992 the applicant lodged an appeal with the Court
of Cassation against the decision of the Civil Justice of the Peace on
the ground that there had been a mistake, stating that he had wanted
only the equal division of the shops and offices between the
entrepreneur and the co-owners, but not the termination of the
co-ownership.
On 9 March 1993 the Court of Cassation considered that the
applicant's requests indeed implied a termination of the co-ownership
and upheld the decision of the Civil Justice of the Peace; it therefore
dismissed the applicant's appeal.
On 26 April 1993 the applicant applied to the Court of Cassation
requesting rectification of the decision.
On 10 June 1993 the Court of Cassation rejected the applicant's
request for rectification of the decision on the ground that the legal
conditions for such rectification were not met.
COMPLAINTS
The applicant complains that the domestic courts were not
impartial since they failed to consider his objections during the
proceedings.
He maintains that the courts gave a decision to terminate the co-
ownership, although he had not requested it. Furthermore, he alleges
that he suffered damage of 2,500,000,000 Turkish Liras. Accordingly,
the applicant submits that his right to property was violated due to
the national courts' mistakes and wrong assessments.
The applicant invokes Article 6 para. 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he did not have a fair trial since the courts were not
impartial. He alleges that he suffered damage due to the wrong
assessments and mistakes of the domestic courts.
However, the Commission recalls that under Article 19 (Art. 19)
of the Convention its sole task is to ensure observance of the
engagements undertaken by the High Contracting Parties in the
Convention. It is not competent to examine applications concerning
errors of law or fact allegedly committed by the competent national
authorities, to whom it falls in the first place to interpret and apply
domestic law and to assess the evidence before them (No. 25062/94, Dec.
18.10.95, D.R. 83, p. 77).
In the present case, the Commission observes that the national
courts based their judgments on the report of the experts for just
division of the shops and offices and they construed the applicant's
request for equal division as termination of their co-ownership in
accordance with relevant provisions of the Turkish Civil Code.
The Commission therefore notes that the applicant's complaints
concern the national courts' evaluation of the nature of the
applicant's claims and of his fair share of the property. The
Commission finds no element which would allow it to conclude that the
courts established the facts in an arbitrary or unreasonable manner or
that they misinterpreted the applicable provisions of the civil law.
The Commission concludes therefore that in this respect there was no
violation of Article 6 (Art. 6) of the Convention.
Insofar as the applicant invokes Article 1 of Protocol No. 1
(P1-1) to the Convention, the Commission primarily recalls that legal
provisions governing private law relations between individuals and
which provide for the surrender of a possession from one person to
another, in particular concerning the termination of co-ownership, do
not infringe the right to peaceful enjoyment of possessions (No.
12462/86, Dec. 13.7.1987, D.R. 53, p. 234). Secondly, there is no
appearence that the applicant has been deprived of his property in
favour of others since there was no unfair trial as mentioned above.
The Commission concludes therefore that, in the instant case, there was
no violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy