Search
document

Document text Analytics

DURAK v. TURKEY

Doc ref: 30491/96 • ECHR ID: 001-4315

Document date: July 1, 1998

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 2

DURAK v. TURKEY

Doc ref: 30491/96 • ECHR ID: 001-4315

Document date: July 1, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 30491/96

by Sadik DURAK

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

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 11 December 1995

by Sadik Durak against Turkey and registered on 19 March 1996 under

file No. 30491/96;

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, born in 1960, is a Turkish citizen and resident

in Van. He is represented before the Commission by Mr Mehmet Mizrak,

a lawyer practising in Van.

The facts of the present case, as submitted by the applicant, may

be summarised as follows:

On 13 November 1990, in proceedings concerning the registration

of certain plots of land, the Van Land Registry Court ordered that a

plot of land be registered as being owned by the applicant. On

23 January 1992 the Court of Cassation upheld this judgment.

On 16 March 1993 the applicant brought an action against the

Treasury before the Van Civil Court of General Jurisdiction (Van Asliye

Hukuk Mahkemesi). He claimed that the registers should be amended so

as to show more land as belonging to him.

On 11 November 1994 the Van Civil Court of General Jurisdiction

dismissed the applicant's case. The court considered that the

applicant's case could not be re-examined as the Van Land Registry

Court's judgment of 13 November 1990 constituted res judicata.

On 9 December 1994 the applicant lodged an appeal with the Court

of Cassation.

On 10 February 1995 the Court of Cassation dismissed the

applicant's appeal and upheld the judgment of 11 November 1994.

On 27 March 1995 the applicant applied to the Court of Cassation

for rectification of its decision.

On 18 May 1995 the Court of Cassation dismissed the applicant's

request for rectification. The Court of Cassation's decision was served

on the applicant on 30 August 1995.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the

Convention that he was deprived of his property as the national courts,

in the proceedings which ended on 30 August 1995, refused to amend the

land register so as to show more land as belonging to him.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 (P1-1)

to the Convention that he was deprived of his property as the national

courts, in the proceedings which ended on 30 August 1995, refused to

amend the land register so as to show more land as belonging to him.

Article 1 of Protocol No. 1 (P1-1), in so far as relevant,

provides:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law..."

The Commission must consider whether the national courts' refusal

to re-examine the applicant's case amounted to a deprivation of his

possessions, within the meaning of Article 1 of Protocol No. 1 (P1-1)

to the Convention.

The Commission recalls that the deprivation of property referred

to in the second sentence of this provision is primarily concerned with

the formal expropriation of assets for public purposes, and not with

the registration of land which is in dispute between two parties

(cf., mutatis mutandis, No. 10000/82, Dec. 4.7.83, D.R. 33, p. 257).

In the present case, the Commission observes that the applicant

brought an action against the Treasury before the Van Civil Court of

General Jurisdiction seeking to have the land registers amended so as

to show more land as belonging to him. However, his request was

rejected by the court as there existed an earlier judicial decision

concerning the relevant registration which constituted res judicata.

Accordingly, the court's refusal to re-examine the case did not involve

any deprivation of the applicant's possessions, within the meaning of

Article 1 of Protocol No. 1 (P1-1) to the Convention.

It makes no difference in this respect that the applicant's

adversary in the proceedings was the Treasury and thus a State

institution. In any event, the Treasury was merely acting as a private

law party in civil litigation, and a court's decision as to who of two

litigants is the owner of certain property according to the rules of

private law can never be seen as constituting an unjustified State

interference with the property rights of the losing party, as it is the

very function of the courts to determine such disputes (cf.

No. 10000/82, Dec. 4.7.83, loc. cit.)

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) 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

LEXI

Lexploria AI Legal Assistant