Communicated on 9 October 2017
SECOND SECTION
Application no. 29115/07
Niyazi ŞAMAT and Nuri ŞAMAT
against Turkey
lodged on 4 July 2007
SUBJECT MATTER OF THE CASE
The application concerns revocation proceedings brought against the applicants by the Forestry Directorate for the annulment of the applicants’ title deed on the basis of classification of the property as forest land. The applicants objected to those proceedings submitting that the issue of the property’s classification as falling outside the forest area had been resolved by a final judgment of 13 March 1979 in their favour. The first-instance court dismissed the case against the applicants on the basis that the matter had already become res judicata. On appeal from the Forest Directorate, the Court of Cassation requested certain documents and information from the first-instance court in order to conduct its examination. That request itself was not forwarded to the applicants for their comments. The requested information was submitted to the first-instance court by the Forestry Directorate and forwarded to the Court of Cassation by the first-instance court. On its examination, the Court of Cassation quashed the judgment of the first-instance court on the basis of the complete case-file, including the information and documents submitted by the Forestry Directorate. It further dismissed the applicants’ objection concerning res judicata by holding that in cases where a final judgment declaring property as not being a forest was disregarded by the forest administration in a subsequent cadastral application, it would be open to the applicants to challenge this administrative act by instituting new proceedings. Having noted that the applicants had failed to do so, it thus reasoned that they could not now raise the plea of res judicata.
The applicants complain under Article 6 § 1 of the Convention about the fairness of the revocation proceedings with particular reference to alleged breach of the res judicata principle, alleged violation of the principle of equality of arms and adversarial proceedings and the failure to give reasons to their submissions concerning the recent amendments in law.
QUESTIONS tO THE PARTIES
Did the applicants have a fair hearing in the determination of their civil rights and obligations in the revocation proceedings, in accordance with Article 6 § 1 of the Convention? In particular:
1. Were the decisions of the domestic courts, including the Court of Cassation, in breach of the principle of legal certainty, considering that they held that a final court judgment, despite having the characteristics of res judicata, could be set aside by administrative authorities unless the parties lodged a separate action within the time-limits prescribed by law (see, inter alia, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Vardanyan and Nanushyan v. Armenia, no. 8001/07, §§ 67‑70, 27 October 2016)?
2. Was the manner in which the Court of Cassation requested information and documents from the first-instance court compatible with the guarantees of the principles of equality of arms and adversarial proceedings? In that respect, what is the distinction between the procedure before the Court of Cassation for remitting the case to the first-instance court for incomplete examination (eksik inceleme) and requesting documents and information from the first-instance court for appeal review (geri gönderme)?
3. Did the domestic courts’ failure to provide reasons in response to the applicants’ repeated submissions, concerning the recent amendment in law no. 4999 providing for a procedure for errors committed by the administrative authorities during cadastral applications, violate the applicants’ right to a reasoned judgment (see Deryan v. Turkey, no. 41721/04, § 37, 21 July 2015)?
APPENDIX
No.
Firstname Lastname
Birth year
Nationality
Place of residence
Representative
Niyazi ŞAMAT
1943
Turkish
İstanbul
A. Turan
Nuri
ŞAMAT
1946
Turkish
İstanbul
A. Turan
Full & Egal Universal Law Academy