Communicated on 2 October 2017
SECOND SECTION
Application no 43101/09
Yılmaz SÖYLEMEZ
against Turkey
lodged on 3 August 2009
SUBJECT MATTER OF THE CASE
The application concerns the compensation proceedings initiated against the applicant by the Istanbul Regional Directorate of Foundations (“the Directorate”) for unlawful occupation of property. The property was owned by an ottoman foundation, for which the Directorate was responsible. Its title, however, was revoked by courts in separate proceedings initiated after the Directorate brought compensation proceedings against the applicant. Drawing the court’s attention to that decision, the applicant argued that the Directorate had no standing to continue the proceedings and could not claim any right over the property. After the decision concerning ownership became final, the first-instance court ordered the applicant to pay a certain sum to the Directorate for unlawful occupation. In the appeal proceedings, the Court of Cassation asked the court to complete the case-file and subsequently quashed the judgment on the grounds that the court did not examine the Directorate’s request for amendment of the claim. After remittal, the applicant reiterated his objections, but the court decided to award the Directorate a higher sum in line with the Court of Cassation’s reasoning. The decision became final on 2 December 2008.
The applicant complains under Article 6 § 1 of the Convention that the court did not give any response to his objections regarding the Directorate’s standing to continue the proceedings and ability to claim compensation for unlawful occupation after the title issued in the name of the foundation was revoked in separate proceedings. Under the same provision, the applicant maintains that the Court of Cassation, after having received the completed case file from the first-instance court, omitted to take into account the appeal petition duly presented by him and exclusively examined the grounds for appeal put forth by the Directorate and thereby quashed the first-instance court’s judgment solely on those grounds.
QUESTIONS tO THE PARTIES
Did the applicant have a fair hearing within the meaning of Article 6 § 1 of the Convention? In particular:
(a) Have domestic courts complied with their obligation to give sufficient reasoning in response to the applicant’s objections that the Directorate had no standing to continue the proceedings and no valid ground to claim compensation after the title issued in the name of the foundation was revoked in separate proceedings, notwithstanding the fact that the subject matter of the Court of Cassation’s decision relied on by the applicant to support his objections in the proceedings before domestic courts (Yargıtay 1 Hukuk Dairesi 2005/1374 E., 2005/13007 K.) was different than that of the impugned proceedings?
In this respect, the parties are requested to provide explanations on the possible implications of the loss of ownership on claims for compensation made for unlawful occupation of property for the period prior to that loss of ownership, with sample decisions of the Court of Cassation and opinions of legal scholars (if any) examining the question of the standing (aktif dava ehliyeti) and the well-foundedness of unlawful occupation claim in such cases.
(b) Have domestic courts respected the applicant’s right to adversarial proceedings in view of the fact that the Court of Cassation, when quashing the first-instance court’s judgment, stated that the Directorate had appealed against that judgment only and referred exclusively to the appeal petition submitted by the same while not mentioning the appeal petition presented by the applicant and not examining the grounds for appeal he had raised?
The Government are requested to provide a copy of the case-file pertaining to the first set of the appeal proceedings brought before the Court of Cassation.
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