Lexploria

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

Menu

USLU v. TURKEY

USLU v. TURKEY

LEXI