THIRD SECTION

 

 

 

 

 

 

CASE OF MUSLUOĞLU[1] AND OTHERS v. TURKEY

 

(Application no. 50948/99)

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

14 June 2007

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

 

 

This version was rectified on 9 July 2007 under Rule 81 of the Rules of Court.

In the case of Musluoğlu[2] and Others v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Mr     B.M. Zupančič, President,
          Mr     C. Bîrsan,
          Mr     R. Türmen,
          Mrs   E. Fura-Sandström,
          Mrs   A. Gyulumyan,
          Mrs   I. Ziemele,
          Mrs   I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 24 May 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 50948/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Turkish nationals, Ms Jale Musluoğlu1, Mr Hüseyin Üçpınar, Ms Makbule Tireli, Mr Sabih Üçpınar, Mr Enver Öztürk and Mr Enver Kemal Üçpınar (“the applicants”), on 20 July 1999.

2.  The applicants were represented by Ms H. Üçpınar, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3.  On 9 March 2006 the Court decided to strike the application out of its list of cases in respect of Mr Enver Kemal Üçpınar and to communicate the application in respect of the remaining five applicants. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1929, 1931, 1927, 1935 and 1940 respectively. The first applicant resides in Ankara, the second, third and fourth applicants reside in Muğla and the last applicant resides in Denizli.

5.  The applicants are the owners of a plot of land of 330,000 square metres (plot no. 1416), in the district of Milas, in Muğla.

6.  On 14 October 1978 the land was officially designated as a first degree conservation area (birinci derece sit alanı) by the High Committee of Ancient Buildings and Monuments attached to the Ministry of Culture, following the discovery of the ruins of an ancient city, Bargylia, in the region. Subsequently, construction of buildings in this area was prohibited pursuant to the Law on Ancient Buildings (Law no. 1710).

7.  On 24 June 1987 and 8 February 1990, Law no. 3386 and Regulations no. 20427 came into force respectively. According to the Law and the Regulations, lands designated as conservation areas could be exchanged for lands owned by the Treasury.

8.  On 17 July 1987 the applicants applied to the Ministry of Culture and Tourism and requested that their land be exchanged for two plots of land in Muğla which belonged to the Treasury.

9.  On 2 May 1988 their request was dismissed as one of the plots that the applicants requested was unavailable for exchange.

10.  In 1990, 1993, 1995 and 1997 Jale Musluoğlu[3] filed several petitions with the Ministry, on behalf of the owners of plot no. 1416 and requested that their land be exchanged for land belonging to the Treasury. No action was taken by the authorities until 1997.

11.  On 11 November 1997 the applicants concluded an agreement with the authorities and plot no. 1416 was exchanged for several plots of land owned by the Treasury. However, the agreement was not approved by the Minister of Finance.

12.  On 10 July 1998 Jale Musluoğlu1 filed a petition with the Ministry of Finance. However, she received no reply to her petition.

13.  On 3 November 1998 the applicants filed an action before the Ankara Administrative Court. They alleged that the failure of the Ministry to approve the agreement of 11 November 1997 meant disapproval and requested the annulment of that decision.

14.  On 8 February 1999 the Ankara Administrative Court issued a decision of lack of territorial jurisdiction and sent the case-file to the Aydın Administrative Court.

15.  On 27 September 2000 the Aydın Administrative Court dismissed the applicants' case. The court noted that, according to the Regulations no. 20427, the plots belonging to the Treasury which were to be exchanged for should be located within the borders of the same district as the individuals' plots. It further noted that the three plots of land which were to be exchanged for the applicants' land were located in another district of the Muğla province and, therefore, considered that the Ministry's decision not to approve the agreement had been lawful.

16.  On 25 April 2002 the Supreme Administrative Court quashed the judgment of the first-instance court. It noted that the Regulations no. 20427 had been amended on 19 February 1992 and that, according to the amended text, the plots belonging to the Treasury which were to be exchanged for should be located within the borders of the same province.

17.  On 3 October 2002, the case-file was sent to the Muğla Administrative Court since, in the meantime, an administrative court was established in this province.

18.  On 18 July 2003 the Muğla Administrative Court abided by the decision of the Supreme Administrative Court and held that the decision of the Ministry had been unlawful.

19.  The Ministry of Finance appealed. On 24 February 2006 the Supreme Administrative Court quashed the decision of the first-instance court.

20.  The case was once again transmitted before the Muğla Administrative Court where the proceedings are still pending.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

21.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...”

22.  The Government contested that allegation.

23.  The period to be taken into consideration began on 3 November 1998 and has not yet ended. It has thus already lasted for more than eight years.

A.  Admissibility

24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

25.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

26.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

27.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

28.  The applicants complained under Article 1 of Protocol No. 1 to the Convention that the administration took effective possession of their land without paying compensation and that the authorities failed to respect the fair balance that had to be struck between the protection of property and the requirements of the general interest.

29. In their observations, the Government raised two preliminary objections. They maintained in the first place that the Court lacked jurisdiction ratione temporis as the land in question had been declared a first degree conservation area in 1978, while Turkey had recognised the competence of the Convention organs to examine individual petitions as of 28 January 1987. Secondly, the Government asked the Court to dismiss the complaint for failure to comply with the six-month time-limit. In this respect, they stated that the applicants should have filed their application with the Court within six months after 2 May 1988, the date on which the Ministry of Culture and Tourism had rejected their request to make an exchange for their land.

30 The Court does not consider it necessary to decide on the Government's preliminary objections since this complaint should in any case be declared inadmissible for the following reason.

31.  It is observed that, pursuant to Law No. 3386 dated 24 June 1987 and Regulations No. 20427 dated 8 February 1990, the applicants requested the domestic authorities that their land be exchanged for land belonging to the Treasury. The Court notes that the domestic proceedings to resolve this dispute are still pending before the Muğla Administrative Court. Accordingly, this part of the application is premature. The Court recalls that after the final ruling is given in the case, it is open to the applicants to re-submit their complaint with the Court if they still consider themselves victims of the alleged violation.

32.  In view of the above, this complaint should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

34.  The applicants claimed 14,005,464 euros (EUR) in respect of pecuniary damage and EUR 45,000 in respect of non-pecuniary damage.

35.  The Government contested these claims.

36.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicants must have suffered non-pecuniary damage, such as distress and frustration, on account of the duration of the proceedings, which cannot be sufficiently compensated by the finding of a violation alone. Having regard to its case-law and making its assessment on an equitable basis, the Court awards the applicants jointly a total sum of EUR 900 under this head.

B.  Costs and expenses

37.  The applicants also claimed EUR 11,854 for the costs and expenses incurred before the Court.

38.  The Government contested the applicants' claim.

39.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 under this head.

 

C.  Default interest

40.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:

(i)  EUR 900 (nine hundred euros) in respect of non-pecuniary damage,

(ii)  EUR 500 (five hundred euros) in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 14 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Santiago Quesada                                                   Boštjan M. Zupančič
              Registrar                                                                        President