FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36209/97
by Hüseyin Cahit ÜNVER
against Turkey
The European Court of Human Rights (First Section), sitting on 26 September 2000 as a Chamber composed of
MrsE. Palm, President,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrR. Türmen,
MrB. Zupančič,
MrT. Panţîru,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 27 December 1996 and registered on 24 May 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Turkish national, born in 1926 and living in Antalya (Turkey) and Belvue (Switzerland). He is represented before the Court by Mr Sinan Aklar, a lawyer practising in Antalya(Turkey).
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owns a three-story house on a hill overlooking the south coast of Antalya. At the time when he had his house built, the south coast was officially designated a conservation area (doğal sit alanı). According to the local master building and settlement plan (imar planı), no building was authorised in this area. In 1993 the Antalya Municipal Board revised the master plan in order to allow homes to be built. Subsequently, property developers were given building permits (inşaat ruhsatı) and undertook major building works in the area. As a result, the natural panorama of the south coast began to change rapidly.
In 1993 the applicant twice complained to the Antalya City Municipality requesting that development be halted with immediate effect. In reply, the Antalya City Municipality informed the applicant that the master plan had been revised on 4 March and 2 July 1993 and that several developers had been granted construction permits pursuant to the revision.
The applicant challenged the award of the building permits before the Antalya Administrative Court (İdare Mahkemesi). He contended that the revision of the master plan did not comply with the requirements prescribed by Law no. 3194 and that the presence of the buildings would deprive him of his right to the peaceful enjoyment of the panoramic view from his house. He further contended that the preservation of the natural beauty of the site was in “the public interest” and the planned high buildings did not meet safety requirements for geographical reasons. He requested the annulment of the building permits awarded to the developers. He also requested the court to order the administration to suspend (yürütmenin durdurulması) the building permits pending the outcome of the court’s final decision on the matter.
On 3 February and 22 August 1994 the court ordered the administration to stay the execution of the building permits. These decisions were served on the administration on 17 February and 5 September 1994 respectively. The court noted that any further construction carried out on the basis of the permits could give rise to irreparable harm.
On 27 September 1994 and 21 February 1995 the applicant’s lawyer requested the Muratpaşa Municipality and the Antalya Metropolitan Municipality to comply with the order. The municipalities neither suspended the building permits nor prevented the holders from continuing to build.
Experts appointed by the court (bilirkişi) investigated the area and submitted a report which generally bore out the applicant’s allegations. On 19 November 1994 the Antalya Administrative Court found, inter alia, that the revision of the local master construction and settlement plan was not in accordance with relevant law and was not in the public interest (kamu yararı). The court also found that building permits did not comply with the revised master plan. The court accordingly annulled the revision of the master plan as well as all building permits awarded on the basis of the revised plan.
The Antalya Metropolitan Municipality and the Muratpaşa Municipality appealed (temyiz) on the ground that the judgment was contrary to substantive and procedural law.
On 29 May 1995 the 6th Chamber of the Supreme Administrative Court (Danıştay) upheld the judgment of 19 November 1994 of the Antalya Administrative Court. The Antalya Metropolitan Municipality and the Muratpaşa Municipality requested the rectification of the judgment (karar düzeltme) of the 6th Chamber. The request was rejected on 18 September 1996.
De facto construction continued in the area even after the annulment of the building permits had become final. The applicant, with reference to the final court judgment, requested the Muratpaşa Municipality and Antalya Metropolitan Municipality to stop the building being carried out by the holders of the annulled permits and to demolish the existing buildings in the area. The municipalities failed to comply with the request. The applicant then complained to various State institutions inter alia, the Antalya Public Prosecutor’s Office, the Antalya Governor’s Office, the Ministry of Interior, and the State Ministry responsible for urban issues. He did not receive any clear response. The impugned buildings remain to this day.
B.Relevant domestic law
Article 138 of the Constitution provides in its fourth paragraph (unofficial translation):
“Legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect nor delay their execution.”
Article 28 of the Administrative Procedure Code states (unofficial translation):
“The administration shall comply with the decisions of the Supreme Administrative Court, district administrative courts, administrative and tax courts. The administration shall ensure the execution of such decisions within thirty days from the date of their notification.”
COMPLAINTS
1.The applicant complains, with reference to Article 6 of the Convention, that the Muratpaşa Municipality and Antalya Metropolitan Municipality failed to comply with the two stay-of-execution orders as well as the judgment of the Antalya Administrative Court of 19 November 1994. He contends that the municipalities were under a duty to stop the construction work at once and remove the existing buildings in the area.
2.The applicant also complains that the failure of the Muratpaşa Municipality and Antalya Metropolitan Municipality to stop the unlawful construction of buildings and to remove the buildings from the area in accordance with the judgment of the Antalya Administrative Court of 19 November 1994 constitutes a continuing violation of Article 1 of Protocol No. 1 to the Convention. In this respect, he contends that the value of his house has been diminished by the presence of buildings which interfere with its panorama and deprive him of his peaceful enjoyment of his property.
THE LAW
The applicant complains that the failure of the municipal authorities to give effect to the decisions of the domestic courts breached his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 thereto.
1.The Government’s preliminary objection
The Government maintain that the applicant never raised his complaints before the domestic courts and on that account they should be declared inadmissible for non-compliance with the exhaustion rule set out in Article 35 § 1 of the Convention.
The applicant states in reply that under domestic law administrative authorities are bound to implement court decisions. There is no legal provision which indicates what action must be taken in the event of their refusal to do so.
The Court considers that it does not have to address the Government’s preliminary objection since the complaints are inadmissible on other grounds.
2.Article 6 § 1 of the Convention
The applicant invokes Article 6 § 1 of the Convention in respect of the failure of the municipalities to comply with the decisions of the domestic courts. Article 6 provides as relevant:
“ In the determination of his civil rights and obligations, everyone is entitled to a fair ... hearing...”
Applicability
The Government dispute the applicability of Article 6 to the proceedings initiated by the applicant. In their submission, those proceedings did not involve the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 since they were administrative in nature being focused on the lawfulness of the revision of the settlement plan.
The applicant did not make any specific submissions on the applicability of Article 6. He states that the aim of his application to the Court is “to ensure the protection of the historical and natural beauty of the area in question for the benefit of all the people in the world”. In the applicant’s submission, by giving building permits to individuals to develop what was a conservation area the authorities deprived the world of this benefit. The domestic courts annulled the building permits, considering that they were not in the public interest. However, the administration failed to comply with the courts’ rulings.
The Court recalls that the execution of a judgment given by a court is to be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see the Hornsby v. Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 511-512, § 40).
The Court observes in this connection that the right of access to a court guaranteed under that Article would be rendered illusory if a Contracting State’s legal system allowed a final binding judicial decision or an interlocutory order made pending the outcome of a final decision to remain inoperative to the detriment of one party. This principle is of even greater importance in the context of administrative proceedings concerning a dispute whose outcome is decisive for a litigant’s civil rights (see, ibidem and mutatis mutandis, the above-mentioned Hornsby judgment).
In applying these principles the Court must ascertain whether the action initiated by the applicant against the municipalities involved the determination of his civil rights within the meaning of Article 6 § 1 of the Convention. It recalls in this context that the applicability of Article 6 requires that there be a dispute (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see, among many other authorities, the Skärby v. Sweden judgment of 28 June 1990, Series A no. 254-B, p. 48, § 24).
The Court notes that in the proceedings before the Antalya Administrative Court the applicant sought an injunction against the municipalities requiring them to suspend the building permits issued to developers as well as the annulment of the amendments made to the original master plan for the area in question. In the Court’s view, the applicant invoked a procedural right under administrative law that was not related to the defence of any specific right which he may have had under domestic law. He brought in effect an actio popularis to prevent further development of the area which he considered to be unlawful and against the public interest. Admittedly the applicant lived in the vicinity of the development and had reason to complain about its effect on the view which he formerly enjoyed from his house. Notwithstanding that particular interest, it cannot be said that the outcome of the proceedings was directly decisive of any of his private rights. There was no pecuniary interest at stake in the proceedings and indeed the applicant never asserted before the domestic courts that the development had a negative effect on the value of his property. In his observations the applicant has confirmed that he initiated the proceedings before the administrative courts for the benefit of the public in general. It must be concluded therefore that the proceedings at issue did not involve the determination of a “civil right”.
For these reasons the Court considers that Article 6 § 1 of the Convention is inapplicable in this case and the applicant’s complaint under this head is inadmissible ratione materiae.
3.The applicant asserts with reference to Article 1 of Protocol No. 1 to the Convention that the failure of the municipalities to comply with the decisions of the domestic courts interfered with his right to the peaceful enjoyment of his property. The provision invoked reads as relevant:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”
The applicant contends that he built his house in what was then a protected conservation area. However, he was subsequently deprived of the peaceful enjoyment of his property on account of the unlawful development of the area. The applicant states that his complaint does not concern the violation of his right to a panoramic view.
With reference to domestic law provisions the Government state that ownership and possession rights do not extend to a right to a panorama. They further submit that Article 1 of Protocol No. 1 to the Convention does not guarantee the right to the peaceful enjoyment of possessions in a pleasant environment.
The Court observes that Article 1 of Protocol No. 1 does not, in principle, guarantee a right to the peaceful enjoyment of possessions in a pleasant environment. It further observes that the applicant has not averred in his observations that the value of his property has suffered as a result of the unlawful development which has taken place along the coast. The Court, for its part, considers that it cannot speculate on this matter, all the more so since it would appear that the applicant did not specifically plead before the domestic court that the impugned development adversely affected the value of his property.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy