FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30944/96
by Abdullah ÖCAL
against Turkey
The European Court of Human Rights (First Section) sitting on 18 January 2000 as a Chamber composed of
MrsE. Palm, President,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrR. Türmen,
MrC. Bîrsan,
MrB. Zupančič,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 March 1996 by Abdullah Öcal against Turkey and registered on 3 April 1996 under file no. 30944/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 18 January 1999 and the observations in reply submitted by the applicant on 2 March 1999;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish national, born in 1942 and living in Ankara.
He is represented before the Court by Ms Zeynep Aşçı, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant inherited a piece of land along with three other persons in Seydişehir. He holds a title deed to the land as a joint owner.
In 1976 the authorities conducted a land registry survey in Seydişehir and revised the local plans. Following this revision, the land in question was registered in the Land Registry with the title of six other persons (Zehra Özden and five others:‘the defendants’) along with the applicant’s and the three other persons’ title (‘the plaintiffs’) as the heirs of Mr Kara Beşe Ahmet Bin-i Ali Efendi (A.E.).
On 3 August 1977 the applicant and the three other plaintiffs brought an action in the Seydişehir Civil Court of General Jurisdiction (asliye hukuk mahkemesi) against Zehra Özden and five defendants. The applicant and three other plaintiffs stated that the land in question had belonged to their and the defendants’ testator (muris), A.E., in the past. They alleged however that A.E. was not the owner of the land before his death since he had transferred the land to their mother in 1953. In support of this allegation they submitted a title deed dated 21 December 1953 bearing their mother’s name as well as invoices indicating that their mother used to pay taxes in respect of the land.
The applicant and his co-plaintiffs requested the court to order the revision of the Land Registry and to determine that Zehra Özden and her five co-defendants had no rights to the land since they were not the heirs of their mother. They further asked the court to order that the land in question be registered under their title alone.
In the proceedings before the court, three of the defendants acknowledged the applicant’s and his three co-plaintiffs’ claim and agreed that the land should be registered under their title.
On 6 November 1978 an expert and a judge, Mr Orhan Gündem, from the Seydişehir Civil Court of General Jurisdiction, conducted a survey of the land.
On 4 October 1984 an expert and a judge, Mrs Canan Karcı, from the same court, conducted a second survey of the land.
On 12 December 1988 the Seydişehir Civil Court of General Jurisdiction issued a decision of non-jurisdiction following the entry into force of Law no. 3402 abolishing the jurisdiction of the Civil Courts of General Jurisdiction on land registry matters.
On 26 January 1994 the applicant lodged a petition with the Ministry of Justice complaining that the impugned proceedings lasted unreasonably long.
On 14 September 1994 the Seydişehir Chief Public Prosecutor, with reference to the applicant’s petition to the Ministry of Justice, sent a letter to the applicant explaining the reasons for the length of the proceedings. He stated that the heavy workload of the court, the change in the composition of the court on sixteen occasions, the resignation or dismissal of the parties’ representatives on three occasions, the death of two of the defendants, the parties’ requests for an extension of time limits on three occasions, the parties’ failure to attend the trials and other legal reasons had delayed the proceedings. He further stated that the courts had held seventy-nine hearings and had conducted two surveys of the land.
On 17 May 1996 the judge of the Seydişehir Cadastre Court and an expert conducted a third survey of the land.
On 20 March 1998 the Seydişehir Cadastre Court dismissed the case brought by the applicant and his three co-plaintiffs. The court held that their mother did not have a title to the land since the land to which she had a title was not the same as the land in question. The court ruled that the applicant and his co-plaintiffs three others were the joint owners of the land in question along with Zehra Özden and her five co-defendants, being the heirs of A.E. The applicant and his co-plaintiffs appealed.
On 9 October 1998 the Court of Cassation quashed the Seydişehir Cadastre Court’s judgment. The court held that the Seydişehir Cadastre Court had failed to consider that three of the heirs had acknowledged the claim of the applicant and his co-plaintiffs. It ruled that their shares should have been registered with the applicant’s and his three co-plaintiffs’ title. The Court of Cassation remitted the case to the first instance court.
The proceedings are still pending before the Seydişehir Cadastre Court.
COMPLAINT
The applicant complains of the length of the proceedings for the determination of his title to the land. He invokes Article 6 § 1 of the Convention.
PROCEDURE
The application was introduced on 28 March 1996 and registered on 3 April 1996.
On 21 October 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 14 January 1999. The applicant replied on 2 March 1999.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
A.Government’s preliminary objection
The Government submit that the applicant has not complied with the requirements of Article 35 § 1 of the Convention. They state that the applicant failed to exhaust domestic remedies without however indicating the remedies which were available to him. The Government further assert that the applicant did not comply with the six-month rule.
The Court notes that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent State, if it pleads non‑exhaustion, to establish that these conditions are satisfied (see, among many other authorities, the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, § 39).
The Court observes that the Government have not established the existence of any effective remedy in respect of the applicant’s complaint concerning the length of the civil proceedings. In so far as the proceedings are pending before the Seydişehir Cadastre Court, the Court considers that the applicant lodged his application within the required time-limit.
The Court concludes, therefore, that the Government’s submission that the applicant has not complied with the requirements of Article 35 § 1 of the Convention cannot be upheld.
B.MERITS
The applicant complains that the proceedings concerning the determination of his title to the land were not concluded within a “reasonable time” as required by Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time...”
According to the applicant, the length of the proceedings – a period of almost 22 years – is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
In the Government’s opinion, the conduct of the parties was the main factor which led to the proceedings being substantially prolonged. They assert that each of the parties requested six extensions of time limits in order to change their representatives. The death of two of the defendants caused the suspension of several hearings. The court had to postpone the conduct of surveys of the land thirteen times due to the parties’ failure to attend and ten times due to weather conditions. The parties’ objection to the results of the first survey gave rise to the conduct of two new surveys.
The Government further argue that the courts held seventy-nine hearings and conducted three surveys using sixteen different judges. They maintain that Law no. 3402 created difficulties for the judicial authorities from the moment it came into force since a new court had taken over the case and had to deal with the proceedings anew. The Government claim therefore that there was no negligence or delay imputable to the judicial authorities.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy