YAVUZDOCAN v. TURKEY - 8472/07 [2012] ECHR 183 (31 January 2012)

JUDGMENT STRASBOURG 31 January 2012 This judgment is final but it may be subject to editorial revision. In the case of Yavuzdoğan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President, András Sajó, Paulo Pinto de Albuquerque, judges, and Françoise Elens-Passos , Deputy Section Registrar , Having deliberated in private on 10 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 8472/07) 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 a Turkish national, Mr Duran Yavuzdoğan (the applicant) on 12 February 2007. On 25 May 2010 the Court was informed of his death on 20 May 2009 and that his successors, Ms Döndü Yavuzdoğan, Ms Ayşe Yavuzdoğan , Ms Tülay Arslan ( Yavuzdoğan) , Mr Erkan Yavuzdoğan, Ms Şenay Yavuzdoğan and Mr Seyit Yavuzdoğan, stated their wish to pursue the application. For practical reasons, Mr Duran Yavuzoğlu will continue to be called “the applicant”, although his successors are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and also Ahmet Sadık v. Greece , 15 November 1996, § 3, Reports of Judgments and Decisions 1996 V ). The Turkish Government (“the Government”) were represented by their Agent. On 4 September 2009 the President of the Second Section decided to give notice of the application to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE The applicant was born in 1943 and lived in Eskişehir. On 13 October 2000 the Turkish State Railways brought compensation proceedings against the applicant before the Eskişehir Civil Court of First Instance for the unlawful occupation of its property. Within the same proceedings the administration also requested that unlawful occupation of the building on the property to be stopped as well as the demolition of it. On 21 June 2005 the court partially granted the administration's request and ordered the applicant to pay the plaintiff the principal amount of TRL 1,374,000,000 and plus TRL 787,205,000 as interest. It also decided that the building on the property be demolished. On 22 February 2006 the Court of Cassation upheld the judgment of 21 June 2005. On 5 October 2006 the Court of Cassation dismissed a request by the applicant for rectification of the judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicant 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...” The Government contested that argument claiming that the impugned proceedings could not be considered to have been excessively long in view of the complexity of the case. They concluded therefore that there had been no delay in the proceedings that may be attributable to the State. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. The period to be taken into consideration began on 13 October 2000 and ended on 5 October 2006 . It has thus lasted approximately six years for two levels of jurisdiction. 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 (see Frydlender v. France [GC], no. 30979/96, §§ 42-46, ECHR 2000 VII, and Daneshpayeh v. Turkey , no. 21086/04, §§ 26-29, 16 July 2009). There has accordingly been a breach of Article 6 § 1 II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION Without invoking any particular Article of the Convention, the applicant complained that his right to life, his right to liberty and security and the prohibition of discrimination had been breached on account of the proceedings brought against him. In the light of all the material in its possession, the Court finds that the above submissions by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 On behalf of the applicant, his successors claimed 100,000 euros (EUR) in respect of pecuniary damage. They also claimed EUR 20,000 in respect of non-pecuniary damage for the distressed caused due to the events which gave rise to instant proceedings. The Government contested these claims as being excessive. 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, it awards the applicant's successors jointly EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses The applicant's successors also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts. They could not submit documentary evidence in support of their claims stating that they had lost the receipts in the meantime. The Government contested the claim. The Court reiterates that 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. The Court considers that the applicants have not substantiated that they have actually incurred the costs claimed. In particular, they failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by their lawyer on the case. Accordingly, the Court makes no award under this head. C. Default interest The Court considers it appropriate that the default interest rate 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 Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds ( a) that the respondent State is to pay to the applicant's successors, Ms Döndü Yavuzdoğan, Ms Ayşe Yavuzdoğan, Ms Tülay Arslan (Yavuzdoğan), Mr Erkan Yavuzdoğan, Ms Şenay Yavuzdoğan and Mr Seyit Yavuzdoğan jointly, within three months, EUR 3,000 (three thousand euros), to be converted into Turkish liras at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the claim for just satisfaction. Done in English, and notified in writing on 31 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-Passos Dragoljub Popović Deputy Registrar President Approximately equivalent of EUR 850 Approximately equivalent of EUR 500 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII