Communicated on 22 November 2018
SECOND SECTION
Application no. 20079/15
Agnessa SIGALOVA
against Turkey
lodged on 21 April 2015
SUBJECT MATTER OF THE CASE
The present application concerns the proceedings initiated by the applicant, who is a Russian national, to stop her eviction from the timeshare she had bought from a private company, which later went bankrupt and had its assets, including the applicant’s timeshare, purchased by another private company in bankruptcy proceedings. The applicant claims that she paid the timeshare fee upfront and regularly contributed to maintenance charges until she has vacated the premises.
Her lawsuit against the eviction notice sent by the new owner of the timeshare was dismissed by the Istanbul Execution Court which held, following the quashing of its initial decision in favour of the applicant, that, pursuant to section 135 § 2 of the Bankruptcy Code, an eviction order can only be set aside if the tenancy relationship can be proven with an official document; but the agreement signed by the applicant did not qualify for this exception since it was neither notarised nor registered in the land registry. She then sought negative declaratory (menfi tespit) judgment from the Istanbul Civil Court which also dismissed her request on the same ground. The Turkish Constitutional Court examined her complaints exclusively under Article 6 of the Convention and found her application inadmissible.
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the domestic courts’ dismissal of her actions resulted in her being unjustly evicted from her timeshare. She maintains that she has, therefore, been unlawfully prevented from using her property for the remainder of the timeshare agreement.
QUESTIONS tO THE PARTIES
1. Does the applicant’s timeshare constitute a “possession” within the meaning Article 1 of Protocol No. 1 of the Convention?
2. Has there been an interference with the applicant’s peaceful enjoyment of her possessions within the meaning of Article 1 of Protocol No. 1?
3. If so, has the applicant been deprived of its possessions in accordance with the requirements of Article 1 of Protocol No. 1?
In particular, did her eviction from the timeshare, despite having paid the timeshare fee and regularly contributed to the charges for its maintenance, solely on account of the timeshare agreement not being notarised or not being registered with the land registry impose on her an excessive individual burden? Moreover, having regard to the State’s positive obligation to ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicated his rights, including, where appropriate by claiming damages in respect of any loss sustained (see Blumberga v. Latvia, no. 70930/01, § 67, 14 October 2008), has the applicant been afforded a reasonable opportunity of challenging effectively the measures depriving her of her right to property and of obtaining an adequate redress?
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