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AS TO THE ADMISSIBILITY OF

Application No. 25128/94

by Kamil Naim KUMASÇI

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 7 december 1993

by Kamil Naim Kumasçi against Turkey and registered on

13 September 1994 under file No. 25128/94;

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 1932, is a Turkish citizen and resident

in Istanbul.

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

be summarised as follows.

The applicant was one of four co-owners of a plot in Istanbul.

On 26 May 1985 the applicant and the other co-owners concluded a

contract with an entrepreneur, according to which the latter undertook

to construct a building comprising shops and offices. The entrepreneur

would divide the shops and offices into two sections on completion of

the construction one of which the co-owners of the land could choose

for themselves while the other group would fall to the entrepreneur.

The entrepreneur, after having completed the building, divided

it into two groups of shops and offices and notified the co-owners.

Three of them chose one of the two groups, but the applicant objected

both to the choice of the other three and to a proposal for division

made by the entrepreneur since the two sections were not equal.

On 9 July 1991 the applicant filed an action with the Civil

Justice of the Peace in Istanbul requesting the equal division of the

54 shops and offices between the co-owners and the entrepreneur.

The Civil Justice of the Peace appointed three experts who

submitted a report proposing two new groups of shops and offices to the

Civil Justice of the Peace.

On 25 June 1992 the Civil Justice of the Peace held that the

shops and offices built by the entrepreneur should be given to the

parties and be registered at the land registry in accordance with the

report prepared by the experts. The Civil Justice of the Peace

considered that the applicant's requests implied termination of the co-

ownership. In this regard he held that the co-ownership should be

terminated in proportion to the shares of the co-owners.

On 2 October 1992 the applicant lodged an appeal with the Court

of Cassation against the decision of the Civil Justice of the Peace on

the ground that there had been a mistake, stating that he had wanted

only the equal division of the shops and offices between the

entrepreneur and the co-owners, but not the termination of the

co-ownership.

On 9 March 1993 the Court of Cassation considered that the

applicant's requests indeed implied a termination of the co-ownership

and upheld the decision of the Civil Justice of the Peace; it therefore

dismissed the applicant's appeal.

On 26 April 1993 the applicant applied to the Court of Cassation

requesting rectification of the decision.

On 10 June 1993 the Court of Cassation rejected the applicant's

request for rectification of the decision on the ground that the legal

conditions for such rectification were not met.

COMPLAINTS

The applicant complains that the domestic courts were not

impartial since they failed to consider his objections during the

proceedings.

He maintains that the courts gave a decision to terminate the co-

ownership, although he had not requested it. Furthermore, he alleges

that he suffered damage of 2,500,000,000 Turkish Liras. Accordingly,

the applicant submits that his right to property was violated due to

the national courts' mistakes and wrong assessments.

The applicant invokes Article 6 para. 1 of the Convention and

Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention that he did not have a fair trial since the courts were not

impartial. He alleges that he suffered damage due to the wrong

assessments and mistakes of the domestic courts.

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, to whom it falls in the first place to interpret and apply

domestic law and to assess the evidence before them (No. 25062/94, Dec.

18.10.95, D.R. 83, p. 77).

In the present case, the Commission observes that the national

courts based their judgments on the report of the experts for just

division of the shops and offices and they construed the applicant's

request for equal division as termination of their co-ownership in

accordance with relevant provisions of the Turkish Civil Code.

The Commission therefore notes that the applicant's complaints

concern the national courts' evaluation of the nature of the

applicant's claims and of his fair share of the property. The

Commission finds no element which would allow it to conclude that the

courts established the facts in an arbitrary or unreasonable manner or

that they misinterpreted the applicable provisions of the civil law.

The Commission concludes therefore that in this respect there was no

violation of Article 6 (Art. 6) of the Convention.

Insofar as the applicant invokes Article 1 of Protocol No. 1

(P1-1) to the Convention, the Commission primarily recalls that legal

provisions governing private law relations between individuals and

which provide for the surrender of a possession from one person to

another, in particular concerning the termination of co-ownership, do

not infringe the right to peaceful enjoyment of possessions (No.

12462/86, Dec. 13.7.1987, D.R. 53, p. 234). Secondly, there is no

appearence that the applicant has been deprived of his property in

favour of others since there was no unfair trial as mentioned above.

The Commission concludes therefore that, in the instant case, there was

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

It follows that the application is 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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KUMASÇI v. TURKEY

KUMASÇI v. TURKEY

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