SECOND SECTION

CASE OF ŞENYÜREK AND OTHERS v. TURKEY

(Applications nos. 34986/05, 34987/05, 35070/05, 41921/06, 44922/06, 44959/06, 44979/06, 44983/06, 45016/06, 45069/06, 45096/06, 45100/06, 45115/06, 45127/06, 50158/06, 50159/06, 10878/07 and 24160/08)

JUDGMENT

STRASBOURG

21 September 2010

FINAL

21/12/2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Şenyürek and Others v. Turkey,

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

 Françoise Tulkens, President,
 Ireneu Cabral Barreto,
 Dragoljub Popović,
 Nona Tsotsoria,
 Işıl Karakaş,
 Kristina Pardalos,
 Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 31 August 2010,

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

PROCEDURE

1.  The case originated in applications nos. 34986/05, 34987/05, 35070/05, 41921/06, 44922/06, 44959/06, 44979/06, 44983/06, 45016/06, 45069/06, 45096/06, 45100/06, 45115/06, 45127/06, 50158/06, 50159/06, 10878/07 and 24160/08 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 one hundred and fifty four Turkish nationals (“the applicants”) on the dates indicated in the annex hereto. Certain applicants are party to more than one application.

2.  The applicants were represented by Mr S. Kaya, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 27 May 2009 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  All of the applicants are from the Çayçatı village of Muş. Numerous plots of land in the village had been used by the applicants' parents or grandparents without a title deed since the 1930's. These parcels were registered in the name of the Treasury in 1960 pursuant to Law no. 4753. In 1977 they were re-registered in the name of the Treasury pursuant to the Land Registry Act (Law no. 766).

5.  On various dates in 1989, the applicants instituted numerous civil proceedings in the Varto Civil Court of First Instance pursuant to Law no. 3402 and requested the annulment of the titles to the plots. Claiming that the parcels in question had been in their families' possession for many years, the applicants further requested that the land be registered in their name. They were all represented by the same lawyer. The first-instance court examined the claims under various files and delivered its initial judgments on different dates between 1989 and 1991 in the presence of the representatives of both parties, which were then either upheld or quashed by the Court of Cassation on various dates between 2003 and 2005. For those judgments that had been quashed, the domestic court continued the proceedings by holding numerous on-site visits, hearing witnesses and requesting expert reports, whilst collecting information. The proceedings ended in the applicants' favour on various dates between 2005 and 2007, after being examined at two levels of jurisdiction, which delivered up to six judgments. The final decisions for files nos. 2005/152, 2005/72, 2005/55, 2005/54 and 2005/49 were served on the applicants on 18 July 2006.

6.  Further details concerning the present applications, including the dates of the domestic judgments and notifications, may be found in the attached list.

THE LAW

I.  JOINDER OF THE APPLICATIONS

7.  The Court considers that, given their common factual and legal background and pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined.

II.  SCOPE

8.  The Court takes note that, in their replies to the Government's observations following the communication of the applications, Mehmet Ataç and Mehmet Azak (application no. 50158/06 and applications nos. 44922/06 and 10878/07 respectively) informed the Court that they did not wish to pursue their applications. The Court is satisfied that respect for human rights as defined in the Convention or its Protocols does not require the examination of the applications in respect of these two applicants to be continued (Article 37 § 1 in fine of the Convention).

9.  In view of the above, the Court holds that it is appropriate to strike the applications out of the list of cases in respect of Mehmet Ataç and Mehmet Azak. The Court will therefore confine its examination of the case to the remaining applicants.

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

10.  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...”

A.  Admissibility

11.  The Government pointed out that Turkey had accepted the competence of the Court to examine individual petitions only in respect of facts or events which have occurred since 22 January 1990. On that account, they contended that the Court can consider only the period after 22 January 1990. The Government further asked the Court to reject the case of Ahmet Koçhan and 45 Others v. Turkey (33694/05) for non-compliance with the six-month time-limit set out in Article 35 § 1 of the Convention. In their view, the final judgment in the aforementioned case in respect of parcels nos. 38, 32, 19, 39 and 21 had been served on the applicants on 18 July 2006, whereas their application was introduced before the Court on 13 February 2007.

12.  The applicants contested these arguments. They maintained that the judgments in respect of parcels nos. 19, 21, 32, 38 and 39 had become final on 21 August and 11 September 2006 and 13 February 2007.

13.  Concerning the Government's first objection, the Court reiterates that it has already held that its competence ratione temporis began on 28 January 1987, the date on which Turkey's declaration accepting the right of individual petition came into force (see Cankoçak v. Turkey, nos. 25182/94 and 2956/95, § 26, 20 February 2001). Noting that the proceedings in the present applications were initiated on various dates in 1989, the Court considers that the Government's jurisdictional objection cannot be upheld.

14.  As for the Government's second objection, the Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V). In line with the above, the Court regularly takes as the starting point for the running of the six-month period in cases against Turkey, the date of service of the decisions of the Court of Cassation's Civil Division on the applicants (see Serdar Tamer Kaygan and Others v. Turkey (dec.), no. 41317/05, 20 October 2009; and Türkan Aras v. Turkey (dec.), no. 29643/05, ECHR 2 March 2010).

15.  Turning to the present applications, the Court observes that the majority of the parcels were claimed by several applicants at the same time, who introduced numerous and more or less simultaneous proceedings before the Varto Civil Court of First Instance for the same group of parcels. Therefore, the domestic court examined claims for a given parcel under various files and delivered its judgments at different dates.

16.  Against this background the Court notes that the applicants' complaint concerning the length of proceedings in respect of parcels nos. 19, 21, 32, 38 and 39 appear in applications nos. 44922/06, 45016/06, 50158/06 and 10878/07. The final decisions in respect of these parcels were delivered on 13 April 2006 and 29 June 2006. Applications nos. 44922/06, 45016/06 and 50158/06 were lodged with the Court on 6 and 11 October 2006, within the six-month time limit, whereas application no. 10878/07 was introduced on 13 February 2007, more than six months after the applicants had been served with the final decision on 18 July 2006.

17.  It follows that the applicants' complaints in application no. 10878/07 with regard to the parcels nos. 19, 21, 32, 38 and 39 must be rejected for failure to comply with the six-months rule within the meaning of Article 35 §§ 1 and 4 of the Convention.

18.  In this connection, the Court notes that the complaints regarding parcel no. 37 in application no. 10878/07 remain within the six-month time limit as the final decision was delivered on 19 October 2006. All of the applicants in application no. 10878/07, except Mehmet Koçhan and Mehmet Zeki Karataş, have also complained about the length of proceedings regarding parcel no. 37. The Court will therefore confine its examination of application no. 10878/07 to parcel no. 37 and the remaining applicants other than the two mentioned above.

19.  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

20.  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).

21.  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; and Karataş and Yıldız and Others v. Turkey, nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06, 16 July 2009).

22.  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 cases. Having regard to its case-law on the subject, the Court considers that in the instant applications 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.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23.  Relying on Article 1 of Protocol No. 1 the applicants firstly asserted that the initial registration of the land in the name of the Treasury had violated their right to property. Secondly, they complained that they had been deprived of their land pending the domestic proceedings, which had been incompatible with the requirements of Article 1 of Protocol No. 1. In conjunction with this complaint they added, under Article 14 of the Convention, that many people in other regions had acquired title to their land whereas they had had to resort to litigation to obtain their entitlement. The applicants lastly maintained, under Article 13 in conjunction with Article 6 of the Convention, that there had been no effective remedy for the interference with their property by the authorities.

24.  The Government contested these allegations and argued that the applicants did not have victim status.

25.  The Court notes that these complaints are closely linked to the one examined above and must therefore likewise be declared admissible, except for the complaints of Mehmet Koçhan and Mehmet Zeki Karataş which were lodged outside the six-month time limit (see paragraph 18 above).

26.  However, having regard to its finding of a violation of Article 6 § 1 (see paragraph 22 above), the Court does not consider it necessary to examine the merits of these complaints separately (Ezel Tosun v. Turkey, no. 33379/02, § 28, 10 January 2006; and Karataş and Yıldız and Others v. Turkey, cited above).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  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

28.  The applicants claimed various amounts in respect of pecuniary damage calculated on the basis of the size of the land in question and EUR 5,000 per person per procedure in respect of non-pecuniary damage. The Government contested these claims.

29.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

30.  As for the non-pecuniary damage, the Court observes that a common interest was at issue in all eighteen cases before the Court. They were introduced in the same year by inhabitants of the same village pursuing the same objective, namely claiming title to different parcels of land. All one hundred fifty-four applicants were represented by the same lawyer, both in the domestic proceedings and before the Court. The length of the proceedings at issue varies between some fifteen and eighteen years. One hundred and forty one of the applicants were simultaneously involved in multiple proceedings claiming title to different parcels. Only thirteen applicants claimed titles to a single parcel.

31.  Having regard to the foregoing, the Court notes that the extension of the impugned proceedings beyond a “reasonable time” undoubtedly caused the applicants non-pecuniary damage which would justify an award. It also takes into consideration the number of applicants, the nature of the violation found and the need to determine the amount in such a way that the overall sum is compatible with the relevant case-law and is reasonable in the light of what was at stake in the proceedings in question. In the light of the Kakamoukas and Others v. Greece case and the above background, the Court considers that all the applicants must be awarded the same amount , irrespective of the number of domestic proceedings brought for different plots (see, mutatis mutandis, Kakamoukas and Others v. Greece [GC], no. 38311/02, § 48, 15 February 2008; and Karataş and Yıldız and Others v. Turkey, cited above). Consequently, irrespective of the number of sets of proceedings concerned, it awards each of the applicants EUR 5,000 for non-pecuniary damage, except Mehmet Ataç and Mehmet Azak (see paragraph 9 above) as well as Mehmet Koçhan and Mehmet Zeki Karataş (see paragraph 18 above). Consequently, ruling on an equitable basis, it awards each of the thirty applicants whose complaints have been declared admissible the full sum claimed under the non-pecuniary damage head (EUR 5,000).

B.  Costs and expenses

32.  The applicants also claimed EUR 2,000 for each of the eighteen applications in respect of the costs and expenses incurred before the domestic courts and EUR 3,000 per person for those incurred before the Court. The Government contested these claims.

33.  According to the Court's case-law, an applicant is entitled to the reimbursement of 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, the Court observes that the applicants did not produce any document in support of their claims. Accordingly, the Court makes no award under this head.

C.  Default interest

34.  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.  Decides to join the applications;

2.  Decides to strike the applications out of its list of cases in respect of Mehmet Ataç and Mehmet Azak in application nos. 50158/06, 44922/06 and 10878/07;

3.  Declares the applications admissible, except for the complaints in application no. 10878/07 with regard to the parcels nos. 19, 21, 32, 38 and 39 which are declared inadmissible;

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

5.  Holds that there is no need to examine separately the remaining complaints;

6.  Holds

(a)  that the respondent State is to pay, within three months, EUR 5,000 (five thousand euros) to each of the applicants, except Mehmet Ataç, Mehmet Azak, Mehmet Koçhan and Mehmet Zeki Karataş, in respect of non-pecuniary damage, plus any tax that may be chargeable;

(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;

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

Done in English, and notified in writing on 21 September, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos  Françoise Tulkens
 Deputy Registrar President