ISIK v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24128/94

                      by Cevat ISIK

                      against Turkey

     The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, 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 12 January 1994

by Cavet Isik against Turkey and registered on 11 May 1994 under file

No. 24128/94;

     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

A.   Particular circumstances of the case

     The applicant is a Turkish citizen born in 1938 and resident in

Istanbul.

     The facts as submitted by the applicant may be summarised as

follows.

                                   I

     On 26 September 1986 the applicant bought a piece of land in

Gökçeada.

     Subsequently the applicant started the construction of a house

which was completed in February 1987.

     On 21 May 1987 the applicant instituted proceedings against the

Treasury and requested the registration of the land and the house in

his name. He submitted that the seller had acquired the property in

consequence of long term bona fide possession. As the seller had not

registered his title before selling the property, no record of title

existed in the land registry.

     On 21 March 1988 the the Gökçeada Court of First Instance (Asliye

Hukuk Mahkemesi) granted, in part, the applicant's request. The Court

observed that a house had been constructed on the land. It noted that

the applicant's request had been duly notified to the public and that

there had been no objection by third parties to the registration of the

property in the applicant's name within a period of three months

provided for in the law. Noting that the land was divided into two

plots by a public road, it ordered the registration of the plot on

which the house had been erected and dismissed the claim for the

remainder of the land.

     The Treasury appealed against this judgment.

     On 6 September 1988 the Court of Cassation upheld the decision

of the Gökçeada Court of First Instance.

     On 3 April 1989 the applicant's title on the land and the house

was registered in the Gökçeada Land Registry.

                                  II

     On 29 March 1988, while the proceedings for registration were

pending before the Court of Cassation, the applicant applied to the

Gökçeada Municipality and requested a permit to occupy the house.

     On 23 May 1988, the Gökçeada Municipality informed the applicant

that on 1 April 1988 the Gökçeada Army-corps Command had ordered the

demolition of his house because his land was located in a restricted

military zone to which Law no. 2565 (Law on the Restricted Military

Zones and Security Zones -2565 sayili Askeri Yasak Bölgeler ve Güvenlik

Bölgeleri Kanunu-) applied. The applicant had failed to obtain the

military authorities' prior approval for his construction in accordance

with that law. The Municipality further informed the applicant that the

construction had been carried out without first obtaining a

construction permit under the Law no. 3194 (Construction Law -3194

sayili Imar Kanunu). The applicant was requested to remove the house

in accordance with the demolition order.

     On 8 June 1988, the Gökçeada Regimental Command, referring

likewise to the decision of the Army-Corps Command dated 1 April 1988,

ordered the demolition of the house within 15 days. The applicant was

informed that in case of his failure to observe this request, the

building would be demolished by the authorities.

     In a communication to the Gökçeada Regimental Command and the

Army-corps Command dated 23 June 1988, the applicant challenged the

decisions of 1 April 1988 and 8 June 1988.

                                  III

     On 8 September 1988, before the house was demolished, the

applicant applied to the Bursa Administrative Court and sought the

annulment of the decisions of the Gökçeada Municipality and the

Gökçeada Regimental Command dated 23 May 1988 and 8 June 1988

respectively.

     The applicant relied, inter alia, on the decision of the Gökçeada

Court of First Instance ordering registration of the property in his

name. He further alleged an implied approval of the authorities on

account of their failure to contest the registration within the three

months' period. In this context, he admitted that he had received the

Municipality decision of 23 May 1988 on the 28th of the same month.

     On 26 December 1988 the building was demolished.

     On 26 April 1991 the Bursa Administrative Court dismissed the

action. The Court noted that in 1962, the area in which the applicant's

land was located, had been declared a second degree restricted military

zone. It held that, as the applicant had constructed the house without

the prior approval of the military authorities, the demolition order

was lawful in accordance with Article 8 paras. f and g of the Law no.

2565. The Court further found that the measures taken by the

Municipality to demolish the house were in compliance with Article 32

of the Law no. 3194.

     The applicant appealed.

     On 24 December 1992 the Council of State dismissed the appeal.

It endorsed the reasons given by the Bursa Administrative Court.

     The applicant requested the rectification of the decision dated

24 December 1992. On 19 November 1993 the Council of State dismissed

this request.

                                  IV

     The applicant subsequently instituted proceedings for

compensation against the Mayor of Gökçeada and the Regimental

Commander. He, inter alia, invoked their civil liability.

     On 6 September 1991 the Gökçeada Court of First Instance

dismissed the action. The Court held that there was no personal fault

attributable to the defendants, although not excluding that the

demolition of the house might have involved the liability of the

administration.

     The applicant did not appeal against this judgment.

                                   V

     On 5 June 1989 the applicant filed a complaint with the Public

Prosecutor of Gökçeada and sought the opening of criminal proceedings

against the Mayor of Gökçeada. On 16 June 1989 the Public Prosecutor

issued a decision of non-jurisdiction. He held that as the Mayor was

a civil servant, the investigation of the matter fell within the

jurisdiction of the County Administrative Board (ilçe idare Kurulu).

     In 1990 the applicant filed another complaint with the Public

Prosecutor of Çanakkale against the Mayor. He, inter alia, reiterated

the same allegations. On 21 June 1990 the Public Prosecutor of

Çanakkale, likewise, issued a decision of non-jurisdiction.

B.   Relevant domestic law

     Law no. 2565 (Law on the Restricted Military Zones and Security

     Zones)

     Article 1 of Law no. 2565, in so far as relevant, provides:

     "The scope of this law is as follows:

     a) To establish the principles and procedure of setting up,

     abolishing and, in case of necessity, expanding the borders of

     ... restricted military zones around ... the military premises,

     military regions and the frontiers, which are of vital importance

     for the defence of the Territories, in order to safeguard their

     security and secrecy ..."

     "Bu kanunun amaci;

     a) Yurt savunmasi bakimindan hayati önemi haiz askeri tesisler

     ve bölgeler ile sinirlarin güvenlik ve gizliligini saglamak için

     bunlarin çevrelerinde kara ... askeri yasak bölgelerinin ...

     kurulmasi, kaldirilmasi ve gerektiginde genisletilmesine iliskin

     esas ve yöntemlerin düzenlenmesidir."

     Article 8 paras. f and g:

     In accordance with Article 8 para. f, in order to carry out

constructions, excavations and make modifications on a land falling

within a "second degree restricted military zone", it is obligatory for

the sake of secrecy and defence of the region to obtain the prior

approval of the authorised Command before a construction permit is

issued by the relevant authorities.

     Article 8 para. g provides that any and all constructions and

acts for which the military authorities' prior approval had not been

obtained shall be stopped. Such constructions shall be demolished by

the owners within a period to be fixed by the authorised Command and

communicated to the owner. If the construction is not demolished within

this period, on the authorised command's request, it shall be

demolished by the administrative authorities.

     Law no. 3194 (construction Law)

     In accordance with Article 21, it is obligatory to obtain from

the governor's office or the municipal administration a construction

permit for all constructions falling within the scope of this law. The

constructions to be carried out by or for the use of the State

institutions and organisations are excluded from this obligation.

     In accordance with Article 32, should the governor's office or

the municipal administration become aware that a construction has been

started without first obtaining a construction permit, they would

establish the then present state of the building and immediately stop

the construction. The owner of the construction, within one month from

the date of interruption, must obtain a construction permit. Otherwise,

the construction would be demolished on orders by municipality or the

governor's office.

COMPLAINTS

1.   The applicant complains under Article 1 of Protocol No. 1 that

the demolition of his house constituted an unjustified deprivation of

his possessions. In this regard he asserts that, as the Municipality

decision dated 23 May 1988 and the demolition order dated 8 June 1988

were not communicated to him, his right to challenge the legality of

the demolition was prejudiced.

2.   The applicant also complains under Article 8 of the Convention

that the destruction of his house constituted an unjustified

interference with his right to respect for his home.

3.   The applicant further complains under Article 18 of the

Convention that the measures complained of were inconsistent with the

legitimate aims prescribed in Article 8 and Article 1 of Protocol

No. 1.

4.   The applicant also complains under Article 6 para. 1 of the

Convention that he did not have a fair trial in the proceedings before

the administrative courts. He asserts in this regard that contrary to

the comments in the Gokceada Court of First Instance's decision dated

6 September 1991, the Bursa Administrative Court and the Council of

State found that the administration was not responsible for the

demolition of his house.

5.   The applicant further complains under Article 6 para. 1 of the

unfairness of the Public Prosecutor's decisions dated 16 June 1989 and

21 June 1990 which dismissed his requests to have criminal proceedings

instituted against the person allegedly responsible for the demolition

of his house.

6.   The applicant complains under Article 5 of the Convention that

the demolition of his house by the administrative authorities

constituted an unjustified interference with his right to security of

person.

7.   The applicant lastly alleges a violation of Article 3 of the

Convention in that, the emotional stress and anxiety which he suffered

as a result of the demolition of his house amounted to inhuman

treatment.

THE LAW

1.   The applicant complains that the demolition of his house

constituted an unjustified interference with his right to peaceful

enjoyment of his possessions. He invokes Article 1 of Protocol No. 1

(P1-1), which, in so far as relevant, reads:

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions.  No one shall be deprived of his

     possessions except in the public interest and subject to the

     conditions provided for by law and by the general principles of

     international law.

     The preceding provisions shall not, however, in any way impair

     the right of a State to enforce such laws as it deems necessary

     to control the use of property in accordance with the general

     interest or to secure the payment of taxes or other contributions

     or penalties."

     The Commission first notes that the demolition of the applicant's

house involved a deprivation of property, but in the circumstances of

the case, the deprivation formed a constituent element of the procedure

for the control of the construction of buildings in the restricted

military zones (cf. Eur. Court H.R., Agosi judgment of 24 October 1986,

Series A, no. 108, para. 51, p. 17). Therefore the demolition of the

house constituted an interference with the applicant's property rights

within the meaning of the second paragraph of Article 1 of Protocol

No. 1 (P1-1).

     The Commission must therefore examine whether the interference

was justified. In this respect, it recalls that the Convention

provision at issue requires that the interference with a person's

peaceful enjoyment of his possessions is lawful and serves a legitimate

aim (see Eur. Court H.R., Fredin judgment of 18 February 1991, Series

A no. 192, pp. 16-17, paras. 48-50). Moreover the interference must be

proportionate, achieving a fair balance between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights (Fredin judgment,

loc. cit., p. 17, para. 51; Agosi judgment of 24 October 1986, Series

A. no. 108, p. 18, para. 52).

     As regards the lawfulness of the interference, the Commission

observes that in the present case the demolition of the building was

in accordance with Article 8 paras. g and f of the Law no. 2565.

     As regards the aim, the Commission observes that it appears from

the relevant provisions of Law no. 2565 that the purposes of

demolishing buildings constructed in restricted military zones without

the military authorities' prior approval are to secure compliance with

the rules governing the restricted areas for military purposes and the

protection of secrecy of the information concerning the forces employed

for the State's defence. The Commission therefore finds that the

interference at issue was in the interest of the national defence and

therefore pursued a legitimate aim.

     As regards the proportionality of the measure in question, the

Commission recalls that in matters of national defence, States enjoy

a wide margin of appreciation (cf. Papamichalopoulos and others v.

Greece, Comm. Report of 9 April 1992, para. 52, Eur. Court H.R. Series

A no. 260-B, p. 77) with regard to both choosing the means of

enforcement and to ascertaining whether the consequences of enforcement

are justified in the general interest for the purpose of achieving the

object of the law in question (cf. Fredin judgment loc. cit., para. 51,

p. 17).

     The Commission further recalls that in determining whether a fair

balance has been struck, among other factors, regard must be had to the

behaviour of the owner of the property, including the degree of fault

or care which he has displayed (Agosi judgment, loc. cit., para. 54,

p. 19).

     In the present case, the applicant, before constructing the

house, failed to obtain the necessary permissions from the military and

the civil authorities as required by the law. Therefore the demolition

of the applicant's house resulted from his failure to obtain the

necessary permissions which constituted a significant fault

attributable to the applicant.

     The applicant also argues that on account of lack of

communication of the Municipality decision dated 23 May 1988 and the

demolition order 8 June 1988, his right to challenge the legality of

the demolition was prejudiced. However, the Commission observes that

contrary to his allegations, the applicant acknowledged before the

Bursa Administrative Court that the Municipality decision had been

communicated to him on 28 May 1988. Moreover, he did challenge the the

demolition order first before the military authorities and later before

the administrative courts. The Commission therefore finds that the

applicant was not deprived of a reasonable opportunity of putting his

case to the responsible authorities (cf. mutatis mutandis, Agosi

judgment, loc. cit., para. 55, p. 19).

     In light of the above, the Commission finds that neither the

civil nor the military authorities can be said to have overstepped the

limits of the margin of appreciation. Nor does it find any other

indication of disproportionality.

     It follows that the interference with the applicant's property

rights was justified and therefore, this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

2.   The applicant also alleges that the demolition of his house

amounted to an interference with his right to respect for his home as

guaranteed by Article 8 (Art. 8) of the Convention, which, reads:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission considers that even assuming that the demolition

of the applicant's house constituted an interference with his right to

respect for his home within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention, the interference was in any event

justified for the following reasons.

     The Commission recalls that according to the constant case-law

of the Convention organs, an interference under the first paragraph of

Article 8 (Art. 8) entails a violation unless it is "in accordance with

the law", has an aim that is legitimate under Article 8 para. 2

(Art. 8-2) and is "necessary in a democratic society" for the aforesaid

aim (see e.g., Eur. Court H.R., W v. the United Kingdom, judgment of

8 July 1987, Series A no. 121, p. 27, para. 60 (a).

     The Commission referring to its examination above under Article

1 of Protocol No. 1 (P1-1), considers that the interference in question

was likewise lawful and pursued a legitimate aim, namely, to protect

national security and public safety. It remains to ascertain whether

the interference was necessary in a democratic society.

     The Commission recalls that the notion of "necessity" implies

that the interference corresponds to a pressing social need and that

it is proportionate to the aim or aims pursued (see e.g. Eur. Court

H.R. Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para.

68).

     The Commission, referring further to its above considerations

under Article 1 of Protocol No. 1 (P1-1), finds that the interference

with the applicant's right to respect for his home was necessary and

proportionate to the aim pursued.

     It follows that even assuming that there has been an interference

with the applicant's right to respect for his home, it was justified

under the second paragraph of Article 8 (Art. 8) and therefore, this

part of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2).

3.   The applicant further complains under Article 18 (Art. 18) of the

Convention that the restrictions which were applied to his right to

respect for his home and the peaceful enjoyment of his possessions, as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention and

Article 1 of Protocol 1 (P1-1), were inconsistent with the legitimate

aims prescribed in Article 8 para. 2 (Art. 8-2) and the second

paragraph of Article 1 of Protocol No. 1 (P1-1-2). Article 18

(Art. 18) provides:

     "The restrictions permitted under this Convention to the said

     rights and freedoms shall not be applied for any purpose other

     than those for which they have been prescribed."

     However, as the Commission found above, the restrictions which

were applied to the applicant's rights at issue were justified under

Article 8 para. 2 (Art. 8-2) of the Convention and the second paragraph

of Article 1 of Protocol No. 1 (P1-1) and therefore, they were

consistent with the legitimate aims for which they have been

prescribed.

     It follows that the application in this respect is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

4.   The applicant also complains under Article 6 para. 1

(Art. 6-1) of the Convention that the Bursa Administrative Court and

the State Council, when dismissing his request for the annulment of the

demolition order, failed to consider the comments of the Gökçeada Court

of First Instance as regards the liability of the administration.

Article 6 para. 1 (Art. 6-1) in so far as relevant, provides:

     "1. In the determination of his civil rights and obligations ...

     everyone is entitled to a fair ... hearing ... by [a] ...

     tribunal established by law ..."

     The Commission recalls in the first place that, in accordance

with Article 19 (Art. 19) of the Convention, its only task is to ensure

the observance of the obligations undertaken by the Parties to the

Convention. In particular, it is not competent to deal with

applications alleging that errors of law or fact have been committed

by domestic courts except where it considers that such errors might

have involved a possible violation of any of the rights and freedoms

set out in the Convention (see e.g., No. 17722/91 Dec. 8.4.91, D.R. 69

pp. 345, 349).

     The Commission further recalls that it is primarily for the

national courts to assess the evidence before them. The Convention

organs cannot examine the national courts' assessment of evidence

unless there has been a gross unfairness or arbitrariness (cf. No.

7987/77, Dec. 13.12.79, D.R. 18 p. 31).

     In the present case, the applicant complains of the

administrative courts' failure to consider the Gökçeada Court of First

Instance's comments on the administration's liability. However, it

appears that the purpose of the civil proceedings before the Gökçeada

Court of First Instance was to ascertain whether and to what extent the

Mayor and the Regimental Commander were personally responsible for the

applicant's losses and not to determine the liability of the

administration. It was for the administrative courts to decide on this

matter. The Commission observes that the Bursa Administrative Court and

the State Council examined the particular circumstances of the case,

evaluated the evidence which they had before them and for reasons

expressly stated in their decisions dated 26 April 1991 and 24 December

1992 respectively, found no violation of law as regards the demolition

of the applicant's house.

     It follows that this part of the application is manifestly ill-

founded and must be rejected pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

5.   In so far as the applicant complains, under Article 6 para. 1

(Art. 6-1) of the Convention, of the unfairness of the Public

Prosecutor's dismissal of his complaint to bring criminal proceedings

against the persons responsible for the demolition of his house, the

Commission recalls that no right to institute criminal proceedings

against the third party is, as such, guaranteed by the Convention (see

e.g., Azevedo v. Portugal Comm. Report 10.7.89 para. 88, Eur. Court

H.R., Series A no. 189, p. 23).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

6.   The applicant lastly alleges violations of Articles 3 and 5

(Art. 3, 5) of the Convention.

     However, to the extent that they have been substantiated, the

applicant's complaints, as they have been submitted, do not disclose

any violation of the invoked Convention provisions.

     It follows that this part of the application is also manifestly

ill-founded and must be rejected pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber   President of the First Chamber

       (M.F. BUQUICCHIO)               (C.L. ROZAKIS)

 

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