FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 61914/00
by Mahmut NALBANT
against Turkey
The European Court of Human Rights (First Section), sitting on 12 May 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrR. Türmen,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrA. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 7 August 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mahmut Nalbant, is a Turkish national who was born in 1936 and lives in Kırklareli. He is represented before the Court by Mrs Havva Nalbant Tekin, a lawyer practising in Tekirdağ.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1927 the applicant's father arrived as an immigrant from Bulgaria. He alleges that in 1934 his father was given, together with other people, plot no. 4086 for settlement (iskan). However, the plot of land was not registered in their names in the Land Registry.
On 13 September 1961 the Land Registry Commission (Tapulama Komisyonu) attached to the General Directorate of Land Registration (Tapu ve Kadastro Genel Müdürlüğü) conducted a land registry survey (tapulama tespiti) and considered that the plot of land (“plot no. 4086”) in the Evrensekiz village should be registered in the name of the Treasury.
On an unspecified date twenty-eight complainants objected to the results of the survey. It is to be noted that the applicant does not figure in the list of complainants.
The applicant claims to have initiated civil proceedings in 1966. It is to be noted that the applicant did not submit any documents supporting this fact.
On 20 November 1970 the Land Registry Commission declared itself incompetent and transferred the case to the Cadastre Court. The latter sent the case-file to the Land Registry Commission and on 3 September 1971 the Land Registry Commission dismissed the objections of the complainants.
In 1972 twenty-six persons including the applicant (“plaintiffs”) filed an action with the Lüleburgaz Cadastre Court and requested the latter to set aside the decision of the Land Registry Commission. The date of petition submitted by the applicant is 8 August 1972.
On 3 February 1981 the court requested from the Kırklareli Land and Settlement Directorate to investigate whether any plots of land were given as settlement in the Evrensekiz village and if so, whether the names of the plaintiffs figured in the registries.
On 20 May 1981 the Kırklareli Land and Settlement Directorate informed the court that only three families' figured in the settlement records as given a settlement in the Evrensekiz village.
On 10 July 1981, 14 October 1981 and 23 November 1981 the Kırklareli Land and the Settlement Directorate informed the court that the names of the plaintiff did not figure in any of the registers pertaining to settlement.
On 31 May 1983 the court conducted an onsite inspection. According to the experts' report of 6 June 1983, the plot of land together with plot no. 3584, 3585 and 3587 was divided into twenty-nine parts in which the plaintiffs were farming. The applicant was using 16000 square metres of this land.
On 7 May 1993 the court conducted an onsite inspection. On 14 May 1993 an expert report was submitted to the court.
On 22 September 1993 the court requested from the Land Directorate to send a sketch of the land together with its surroundings.
On 22 December 1993 the court requested from the Land Directorate the files concerning the plot of land together with fourteen neighbouring plot of lands.
On 28 February 1994 the Land Directorate submitted the requested files.
On 23 May 1996 the court conducted an onsite inspection. According to the expert report drafted on 29 May 1996 it was impossible to determine whether the land was previously a meadow since it was being used as farmland.
On 24 May 1996 Lüleburgaz Land Registry Directorate submitted additional documents concerning title-deeds and registry records.
On 29 June 2001 the court conducted an onsite inspection. According to the expert report prepared by an expert who took into account witness statements and expert testimony, the plot of land was previously a meadow but that the plaintiffs were using the land as farm land.
On 18 July 2001 the applicant submitted his comments on the results of the onsite inspection and his observations on the merits.
On 18 July 2001 the Lüleburgaz Cadastre Court dismissed the case and held that the plot of land should be registered in the name of the Treasury. It considered that the land in question was a public property because it was a meadowland and that therefore, the plaintiff could not by de facto possession acquire ownership of it. It further noted that no official document was found supporting the plaintiffs' arguments that they were given the plot of land for settlement.
On 2 September 2001 the plaintiffs appealed against the decision of the first-instance court.
On 20 October 2003 the Court of Cassation upheld the aforementioned judgment of the Lüleburgaz Cadastre Court.
On 29 April 2004 the Court of Cassation dismissed the applicant's request for a rectification of its judgment.
COMPLAINTS
The applicant complains that he was denied his right to a fair hearing within a reasonable time. He relies on Article 6 of the Convention.
The applicant complains under Article 1 of Protocol No.1 that his right to peaceful enjoyment of his property was breached. In this connection, he submits that the land was given for his use by the authorities and that it was not fair that later on it was registered under the Treasury.
THE LAW
1. The applicant contends under Article 6 § 1 of the Convention that the length of the civil proceedings contravened the reasonable time requirement under Article 6 § 1 of the Convention.
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.
2. The applicant complains that the civil proceedings were not fair and that his right to peaceful enjoyment of his property was breached. He submits that the land was given for his use by the authorities and that it was not fair that later on it was registered under the Treasury. He invokes Article 6 of the Convention and Article 1 of Protocol No. 1.
As regards the applicant's complaint pertaining to the fairness of the proceedings, the Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing by the domestic authorities, and that his complaints essentially consist of an objection to the outcome of the proceedings and consequently, to alleged errors of fact and law. In this connection, the Court reiterates that according to its established case-law, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court further reiterates that the establishment of the facts and the assessment of the evidence are primarily matters for the domestic courts, the Court's supervisory jurisdiction being limited to ensuring the applicant's Convention rights have not been breached. In the instant case, the Court notes that throughout the proceedings, the applicant was fully able to state his case and that there is nothing in the case file to indicate that the taking and the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6.
Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
As regards the applicant's complaint pertaining to the interference with his right to peaceful enjoyment of his property, the Court observes that the applicant was never the lawful owner of a part of the plot of land in question and that the civil proceedings at issue concerned the determination of the ownership of the impugned plot of land. Taking into consideration the conclusion reached by the Court in respect of the fairness of the proceedings, the Court considers that, in the present case, the applicant has not been deprived of his property in breach of Article 1 of Protocol No. 1. It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning the length of the civil proceedings;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy