SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41421/05
by TUR-KO TURIZM YATIRIM VE TICARET A.Ş.
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 September 2008 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 1 November 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant is Tur-Ko Turizm Yatırım ve Ticaret A.Ş., a company registered in Ankara. It is represented before the Court by Mr E.A. Yıldırım, a lawyer practising in Ankara.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
Mr M.Ş. Vanlı, the chief executive officer (CEO) of the applicant company and the sole individual with representative powers, owned a plot of land in Sincan, Ankara, measuring 6,730,000 square metres. On 6 November 1989 he was informed by the local Cadastral Directorate that measurement errors had been made on cadastral surveys in the region, the correction of which would reduce the area of his land by 560,000 square metres.
1. Proceedings before the civil courts
On 4 December 1989 Mr Vanlı filed a complaint with the Sincan Magistrate’s Court, objecting to the cadastral corrections. On 25 December 1989 he sold the plot to the applicant company.
On 24 December 1992 the Sincan Magistrate’s Court decided in favour of Mr Vanlı.
On 1 May 1994, at a hearing attended by Mr Vanlı’s representative, the Court of Cassation quashed the judgment on procedural grounds and remitted the case back to the Sincan Magistrate’s Court.
It appears from the case file that Mr Vanlı did not pay the relevant fees to enable the proceedings to continue; in consequence, the proceedings were first abrogated (işlemden kaldırma), then closed (davanın açılmamış sayılması), in accordance with the domestic law.
On 10 September 1996 the applicant company filed an objection to the cadastral corrections before the Sincan Magistrate’s Court.
On 6 November 1996 the court dismissed the applicant company’s request. In its decision the court noted that, under the relevant legislation, the time limit for filing a complaint against cadastral corrections was thirty days, and recalled that the cadastral corrections had become final when the civil proceedings instituted by Mr Vanlı, the CEO of the applicant company, were closed on the ground that he had not paid the legal fees required in order to continue the proceedings remitted to the first-instance court.
On 29 September 1997 the Court of Cassation upheld that judgment.
2. Proceedings before the administrative courts
On 26 June 1998 the applicant company filed a letter with the General Directorate of Land Registration (Tapu Kadastro Genel Müdürlüğü), requesting renewal of the cadastral registrations concerning the impugned plot. The request was dismissed on 22 July 1998.
On an unspecified date the applicant company instituted proceedings before the Ankara Administrative Court against the General Directorate of Land Registration (hereinafter “the Directorate”) and requested annulment of the Directorate’s rejection. On 15 February 1999 the Directorate submitted its replies to the court.
On 10 November 1999 the Ankara Administrative Court dismissed the applicant company’s request on the ground that cadastral corrections had become final after civil proceedings (see above).
On 22 October 2002 the Council of State quashed that judgment.
The Directorate applied for rectification of the Council of State’s judgment.
On 29 April 2005 the Council of State upheld the Ankara Administrative Court’s judgment, holding that the judgment had been in conformity with the law and procedure.
The decision was served on the applicant company on 5 July 2005.
B. Relevant domestic law
Article 409 of the Code on Civil Procedure provides that proceedings are to be abrogated one month after the last act where it is for one of the parties to continue the proceedings and he or she has not taken any steps thereto. The same provision further indicates that the file is to be closed ex officio by the court where the relevant party has not indicated, within three months of the abrogation, his or her interest in continuing the proceedings.
COMPLAINTS
The applicant company complained under Article 6 § 1 of the Convention that the length of proceedings before the administrative courts had exceeded the reasonable time requirement.
The applicant company further alleged under Article 1 of Protocol No. 1 that the reduction in the area of its land and the length of the subsequent proceedings had constituted an unjustified interference with its right to property.
The applicant company asserted that renewal of cadastral registrations as provided under Law no. 2859 had not been an effective remedy for its complaint, thus depriving it of its right to an effective remedy. The applicant company relied on Article 13 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.
THE LAW
1. The applicant company complained under Article 6 § 1 of the Convention that the length of the proceedings before the Ankara Administrative Court had been excessive.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant company alleged under Article 1 of Protocol No. 1 that the reduction in the area of its land and the excessive length of the subsequent proceedings had constituted an unjustified interference with its right to property. The applicant company further asserted that renewal of cadastral registrations as provided under Law no. 2859 had not been an effective remedy for its complaint, thus depriving it of its right to an effective remedy. The applicant company relied on Article 13 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.
The Court notes that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism. It does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many others, Alınak v. Turkey (dec.), no. 30514/96, 17 October 2000).
In the instant case the Court observes that the civil proceedings initiated by the applicant company were dismissed for having been introduced out of time, whereas the subsequent administrative proceedings were dismissed on the ground that the renewal of cadastral registrations could not be requested in cases where cadastral corrections had become final.
The Court therefore concludes that the applicant company has failed to exhaust domestic remedies. It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant company’s complaints concerning the length of administrative proceedings;
Declares the remainder of the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy