AS TO THE ADMISSIBILITY OF
Application No. 29860/96
by Sibel Bilge USLU
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 28 September 1995
by Sibel Bilge USLU against Turkey and registered on 22 January 1996
under file No. 29860/96;
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
The applicant, who was born in 1963, is a Turkish citizen. She
is a lawyer resident in izmir. She is represented before the Commission
by Mr Halil ibrahim Uslu, a lawyer practising in izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant's father, A.B., was one of the co-owners of land
in Karadeniz Eregli.
On 29 March 1990 a part of A.B.'s land was designated as a park
area as a result of a revision of the local plan by the municipality
of Karadeniz Eregli.
On 5 October 1990 the applicant's father brought an action in the
Zonguldak Administrative Court. He demanded the annulment of the
revision of the plan concerning his land.
On 21 December 1990 a survey of the applicant's father's land was
conducted by court order. The experts stated in their report that there
was no general interest in designating the relevant part of the land
as a "park area".
On 23 January 1991 the Zonguldak Administrative Court ordered
that the execution of the plan be suspended.
On 21 March 1991 the same court decided to cancel the
municipality's decision to declare the disputed land a "park area".
The municipality appealed to the Supreme Administrative Court
which quashed the judgment of the Zonguldak Administrative Court of
21 January 1992 because of insufficient examination by experts.
On 15 April 1992 the Zonguldak Administrative Court ordered a new
detailed survey of the land, which was conducted on 12 January 1993.
In their report, the experts stated that there was a general interest
in designating the relevant land as a park area.
The applicant's father objected to this expert report and the
court appointed three new experts to conduct a third survey of the
land.
The third survey of the land was conducted on 3 May 1993. The
experts submitted their report on 1 January 1994 after an extension of
time granted by the court. In their report the experts stated that
there was a public interest in the revision of the local plan.
On 24 February 1994 the Zonguldak Administrative Court found
against the applicant's father.
The applicant's father died on 19 March 1994.
On 2 May 1994 the applicant appealed to the Supreme
Administrative Court.
On 15 February 1995 the Supreme Administrative Court upheld the
judgment of the Zonguldak Administrative Court. This decision was
served on the applicant on 30 March 1995.
COMPLAINTS
1. The applicant complains that the length of the civil proceedings
between 5 October 1990 and 15 February 1995 (4 years 4 months and 10
days) exceeded the reasonable time requirement laid down by Article 6
para. 1 of the Convention.
2. The applicant further complains under Article 6 para. 1 of the
Convention that her right to a fair trial was breached as regards the
national courts' evaluation of the evidence and interpretation of
domestic law. She alleges that in her case, the courts finally decided
on the basis of the third experts' report which was submitted later
than provided for in the Turkish Code of Civil Procedure.
3. The applicant also alleges under Article 6 of the Convention that
she was not given a fair hearing by an independent and impartial
tribunal, as in Turkey judges are appointed by the Supreme Council of
Judges and Prosecutors whose decisions are not reviewed by a judicial
organ pursuant to Article 159 of the Turkish Constitution.
4. The applicant further invokes Article 1 of Protocol No. 1 to the
Convention. She alleges that she has been denied the peaceful enjoyment
of her possessions without this being in the public interest.
5. She further complains under Article 1 of Protocol No. 1 to the
Convention that she was not compensated for this interference with the
peaceful enjoyment of her property.
THE LAW
1. The applicant complains under Article 6 para 1 (Art. 6-1) of the
Convention that the length of the civil proceedings between 5 October
1990 and 15 February 1995 exceeded the reasonable time requirement.
Article 6 para. 1 (Art. 6-1) of the Convention states that "in
the determination of his civil rights and obligations ... everyone is
entitled to a fair ... hearing within a reasonable time ...".
However, the Commission recalls that the reasonableness of the
length of proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the established case-law, in particular the complexity of the case
and the conduct of the applicant and of the relevant authorities (Eur.
Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series
A no. 319, p. 20, para. 59). Furthermore, the Convention organs also
consider it appropriate to make an overall assessment of the length of
proceedings in some cases (see e.g. Eur. Court HR., Cifola v. Italy
judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).
The Commission notes that the period to be taken into
consideration began on 5 October 1990, when the applicant brought an
action against the municipality's decision in the Zonguldak
Administrative Court, and ended on 15 February 1995 by the decision of
the Supreme Administrative Court. Therefore, the total length of the
proceedings was 4 years 4 months and 10 days. During this period, the
Zonguldak Administrative Court and the Supreme Administrative Court
each examined the case twice.
The Commission finds that the proceedings before the
Administrative Court were not simple. The court ordered three separate
surveys of land, at least one of which was necessitated by the
applicant's objections to the previous one.
The Commission finds that there are no delays which may be
attributed to the Turkish authorities. Moreover, the applicant has not
shown any substantial periods of inactivity attributable to the
judicial authorities.
In these circumstances and taking into account the particular
circumstances of the case, the Commission finds that the proceedings
at issue in the present case did not exceed a reasonable time within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains that her right to have a fair
hearing was breached as regards the national courts' evaluation of the
evidence and the interpretation of domestic law. She alleges moreover
that the courts finally decided her case on the basis of the third
experts' report which was submitted later than it provided for in the
Turkish Code of Civil Procedure.
However, the Commission recalls that under Article 19 (Art. 19)
of the Convention, its sole task is to ensure observance of the
engagements undertaken by the High Contracting Parties in the
Convention. It is not competent to examine applications concerning
errors of law or fact allegedly committed by the competent national
authorities, which are competent in the first place to interpret and
apply domestic law (No. 25062/94, Dec. 18.10.1995, D.R. 83, p.77).
In the present case, the Commission finds no evidence to conclude
that the national courts acted in an arbitrary or unreasonable manner
in establishing the facts or interpreting the domestic law. The
Commission notes especially that the Zonguldak Administrative Court,
after the third survey of the land which was conducted on 3 May 1993,
decided to extend the time-limit given to the experts. Therefore,
there is no appearance of a violation of the applicant's rights under
Article 6 para. 1 (Art. 6-1) of the Convention by the national courts.
It follows that this part of the application must be rejected
as being manifestly ill-founded within the meaning of Article 27 para.2
(Art. 27-2) of the Convention.
3. The applicant alleges that under Article 6 para. 1 (Art. 6-1) of
the Convention her case was not examined by an independent and
impartial tribunal as the judges had been appointed by the Supreme
Council of Judges and Prosecutors, whose decisions are not reviewed by
a judicial organ pursuant to Article 159 of the Turkish Constitution.
The Commission observes that the applicant does not challenge
the subjective impartiality of the Zonguldak Administrative Court
judges in her case. She only objects to the fact that they had been
appointed by the Supreme Council of Judges and Prosecutors.
The Commission recalls that "in order to establish whether a body
can be considered independent, regard must be had, inter alia, to the
manner of the appointment of its members (cf., Eur. Court HR,
Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16,
para. 32).
The Commission notes that the judges who dealt with the
applicant's case had been appointed, like all other judges in Turkey,
by the Supreme Council of Judges and Prosecutors. However this is not
sufficient to create any legitimate doubt as to the independence of the
courts. The applicant adduces no other evidence to show that the
independence of the courts was questionable.
The Commission therefore considers that this part of the
application must be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant submits, under Article 1 of Protocol No. 1 (P1-1),
that the revision of the local plan deprived her of the right
peacefully to enjoy her possessions.
However, the Commission recalls that the rule in the second
paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention
recognises that the Contracting States are entitled, amongst other
things, to control the use of property in accordance with the general
interest (No. 21343/93, Dec. 10.10.1994, D.R. 79, p. 44).
In the present case, the Commission notes that her complaint
concerns a revision of a settlement plan which designated a part of the
applicant's land as a park area and that this revision aimed to serve
the general interest. Therefore the interference with the applicant's
peaceful enjoyment of her possessions served a legitimate aim under
Article 1 of Protocol No. 1 (P1-1) to the Convention and could not be
considered disproportionate to that aim.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant further complains under Article 1 of Protocol 1
(P1-1) to the Convention that she was not compensated for the
interference with peaceful enjoyment of her property.
The Commission recalls that in accordance with Article 26
(Art. 26) of the Convention, "it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law..." (see e.g., No. 15117/89, Dec.
16.1.95, D.R. 80, p. 5)
In the present case, the applicant did not apply to national
courts for the loss she had suffered as a result of the revision of the
local plan.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy