SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11326/03 by Mehmet Ali KAÇAR against Turkey

The European Court of Human Rights (Second Section), sitting on 24 June 2008 as a Chamber composed of:

Françoise Tulkens , présidente ,

Ireneu Cabral Barreto ,

Vladimiro Zagrebelsky ,

Danutė Jočienė ,

András Sajó ,

Nona Tsotsoria ,

Işıl Karakaş , juges ,

and Sally Dollé , Section Registrar ,

Having regard to the above application lodged on 12 March 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applica nt, Mr Mehmet Ali Kaçar , is a Turkish national who was born in 1957 and lives in Diyarbak ı r . He was represented before the Court by Mr R. Dursun , a lawyer practising in Izmir . The Turkish Government (“the Government”) were represented by their Agent for the purposes of the proceedings before the Court .

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Background

The applicant claims that he inherited land situated near a river bed in Söğütalan village in the Ergani district and that he had planted vineyards and almond trees there for his livelihood. This land is currently submerged under the Kralkızı Dam waters .

In 1983 a cadastral survey was conducted in Söğütalan village. The land in question was excluded from cadastral demarcation on the ground that it consisted of rocks, hills and mountains. This survey became final on 25 November 1983 as no one objected to it.

Twice the applicant unsuccessfully sought to register the land under his name. The first proceedings ended on 18 May 1999 when the parties did not pursue the case. The second proceedings ended on 8 April 2000 when the applicant failed to lodge an appeal to the Court of Cassation against the first-instance court ’ s decision to dismiss his case.

In the meantime , on 16 September and 16 December 1997, the applicant brought a declaratory action before the Ergani Magistrates ’ Court with a view to determine the plants and immovable property on the land as the latter was going to be submerged under the waters of the Kralkızı Dam. Two on-site inspections took place. On the basis of these inspections an agricultural expert, Mr M.A. prepared two reports. The court also heard two witnesses and two local experts.

B. Compensation proceedings

On 17 March 1999 the applicant requested the Ergani Civil Court of First Instance to order compensation for de facto expropriation of his property. He submitted that his plot of land, where he grew vines and almond trees, had been submerged under the waters of the Kralkızı Dam and that since the land in question had been unlawfully left outside the cadastral demarcation the authorities had not expropriated it. The applicant relied on the expert reports issued during the declaratory actions above.

On 1 December 1999 Judge M.K. at the Ergani Civil Court of First Instance, on the basis of the evidence in the case file, ruled in favour of the applicant and ordered the National Water Board to pay a certain amount of compensation.

O n 17 April 2000 the Court of Cassation quashed the judgment of the first-instance court. It noted that the first issue to be determined should have been whether the applicant was the possessor of the plants at issue and that therefore he should have been given leave to bring such a case to determine that matter prior to the merits of the compensation claim being examined . I t further found excessive the manner in which the value of the almond trees had been calculated.

On 14 June 2000 the applicant ’ s request for a rectification of its decision of 17 April 2000 was dismissed by the Court of Cassation.

On 17 November 2000 the applicant filed another petition with the first ‑ instance court requesting the determination of possession of the plants ( zilliyetlik ). The cases were joined on 20 December 2000.

On 21 December 2000 Judge M.K. at the Ergani Civil Court of First Instance Court, on the basis of the evidence in the case file, ruled in favour of the applicant and ordered the National Water Board to pay a certain amount of compensation. However, since, in the meantime, the applicant had waived his request for the almond trees, the compensation determined by the court, did not include them.

On 7 May 2001 the Court of Cassation quashed the judgment of the first ‑ instance court on the ground that there was no reliable evidence to support the applicant ’ s allegations that there had been plants which had belonged to him on this State land. The court noted the inconsistencies in the expert reports drafted by the same agricultural expert in the course of various proceedings and considered them unreliable . In this connection, the court pointed out that the agricultural expert in his report of 18 September 1997 had stated that there were 2,500 vines and 75 almond trees on the land; however the same expert in his on-site inspection of 20 February 1998 had noted that there were 40 almond trees on the land. Moreover, in his report of 31 October 1997 the same expert had stated that there were no vine roots on the land and no sign of any agricultural activity for the past five years.

On 24 October 2001 the applicant ’ s request for a rectification of its decision of 7 May 2001 was dismissed by the Court of Cassation.

On 7 March 2002 Judge M.K. at the Ergani Civil Court of First Instance, relying on the grounds laid out in the decision of the Court of Cassation, dismissed the case.

On 25 June 2002 the Court of Cassation held a hearing. On the same day it upheld the decision of the first-instance court. On 15 November 2002 the applicant ’ s request for a rectification of its decision of 25 June 2002 was dismissed by the Court of Cassation.

COMPLAINT

The applicant complained under Article 1 of Protocol No. 1 that the domestic courts had unlawfully deprived him of his property rights.

In his observations, dated 6 November 2006, the applicant also submitted that the domestic courts ’ decision to refuse to award compensation had breached his right to a fair hearing.

THE LAW

The applicant maintained that he had been unlawfully deprived of his right to the peaceful enjoyment of his possessions, in breach of Article 1 of Protocol No. 1, which, in so far as relevant, reads:

“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 applicant further complained that the outcome of the compensation proceedings had breached his right to a fair hearing.

The Court considers that this complaint falls under Article 6 § 1 of the Convention, which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. Parties ’ submissions

The Government raised a number of preliminary objections. Firstly, they submitted that the application should be declared incompatible ratione temporis . Secondly, the Government maintained that the applicant had failed to exhaust domestic remedies on three different accounts. Finally, they stated, as an alternative, that the initial application as well as the applicant ’ s fresh complaints under Article 6 had been lodged outside the six-month time-limit. As to the merits the Government maintained that the applicant had never owned the land in question. Nor could he have had any legitimate expectation of acquiring ownership of it.

The applicant made no specific submissions on the admissibility of the application. In his observations on the merits the applicant specified that he had not received any compensation for the loss of his vineyards and almond trees despite the fact that they had been submerged under the dam. He maintained that, although the land in question had been in his possession for a long time, the object of the domestic proceedings had not been to acquire a title deed to the land, which had been unlawfully excluded from the cadastral demarcation. He stated that he merely wanted compensation for his vineyards and almond trees. He alleged that the domestic courts ’ decision to dismiss his request for compensation had been unlawful, unjustified and unfair. In this respect he stated that the domestic courts had discriminated against him because they had previously accepted similar claims by other people [1] . The applicant complained that, despite the evidence and jurisprudence of the Court of Cassation in similar cases, his claims were dismissed on the basis of unsatisfactory abstract reasons.

B. The Court ’ s assessment

The Court considers it unnecessary to determine whether the application is compatible ratione temporis or whether the applicant has exhausted domestic remedies and complied with the six-month rule, within the meaning of Article 35 §§ 1 and 3 of the Convention, since his complaints are in any event inadmissible for the following reasons.

The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, applies only to a person ’ s existing possessions (see, for example, Kop ecký v. Slovakia [GC], no. 44912/98, § 35 , ECHR 2004 ‑ IX ). However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol No.1. Nevertheless, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts ( see, in particular, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65 , ECHR 2007 ‑ ...).

In the instant case the Court notes that the applicant never had a lawful title to the land in question. Nor did he have any legal rights over the flora on this land. Therefore, in Convention terms, it cannot be said that the applicant had an enforceable claim to, or a legitimate expectation of, obtaining compensation due to the submersion of the land in question under the dam and the guarantees of Article 1 of Protocol No. 1 do not thus apply to the present case (see, for example, Balcı v. Turkey ( dec .), no. 68545/01 , 10 January 2008; Namlı and Others v. Turkey ( dec .), no. 51963/99, 8 March 2005; and Sarıaslan and Others v. Turkey ( dec .), no. 32554/96, 23 March 1999 ).

Taking into consideration that the applicant ’ s complaint under Article 1 of Protocol No.1 to the Convention essentially concerns the outcome of the proceedings before the domestic courts, the Court considers that this complaint should be examined under Article 6 § 1 of the Convention (see Namlı and Others , cited above). In this connection, the Court reiterates that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings, and it cannot substitute its view for that of the domestic courts ’ finding with regard to the ownership of the flora in question (see Balcı , cited above ). The domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see, amongst many authorities, Gurepka v. Ukraine , no. 61406/00, § 45, 6 September 2005 and Göktaş v. Turkey , no. 66446/01, § 32 , 29 November 2007 ).

The Court observes that during the domestic proceedings the applicant had the benefit of adversarial proceedings. He was legally represented throughout the proceedings and was able to argue his claim to the ownership of the flora. The case was examined three times before two instances. A hearing on the merits of the case was held before the Court of Cassation, on 25 June 2002, when the applicant and/or his legal representative were able to orally plead his case. As a result, the relevant domestic decisions do not disclose any manifestly arbitrary reasoning and the Court sees no appearance of a violation of Article 6 § 1 as regards the outcome of the proceedings. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application .

For these reasons, the Court unanimously

Declares the application inadmissible .

Sally Dollé Françoise Tulkens Registrar President

[1] The applicant submitted a number of court decisions.