SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1262/02 by Edip DOĞRUSÖ Z and Mehmet ASLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 28 June 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr V. Butkevych , Ms D. Jočienė , Mr D. Popović , judges , and Mr S. Naismith , Deputy Section Registrar ,

Having regard to the above application lodged on 27 November 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Edip Doğrusöz and Mehmet Aslan , are Turkish nationals who were born in 1931 and 1930 respectively. The first applicant live s in Ankara and the second one lives in Hatay . They are represented before the Court by Mr Z. Kadayıfçı , a lawyer practising in Hatay .

A. The circumstances of the case

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

In 1965 the applicants bought a plot of land in Hatay from the SamandaÄŸ Municipality which was the initial heir to the land.

On 27 April 1995 the SamandaÄŸ Municipality , acting on behalf of the Treasury, requested the SamandaÄŸ Court of First Instance in Civil Matters to determine whether the applicants ' plot of land was located within the coastal line. They claimed that , according to the Coastal Law , the land in question cannot be owned by an individual and must be used only for public benefit purposes.

On 3 May 1995 a group of experts, composed of a geomorphologist , a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants ' land and concluded that it was located within the coastal line.

On 3 July 1995 the SamandaÄŸ Municipality filed an action before the SamandaÄŸ Court of First Instance in Civil Matters, on behalf of the Treasury, requesting the annulment of the record in the title deed register for the applicants ' land. Furthermore it requested the court to apply an interim measure on the land in order to prevent any transfer of the title until the end of the case.

On 19 September 1996 the applicants filed a petition with the court objecting to the expert report dated 3 May 1995 . They argued that, as the expert report failed to take into consideration the flora of their property as well as the features and the age of the surrounding buildings, it could not be taken as a basis for the annulment of the record in the title deed register. Moreover , they maintained that the Municipality did not only dispose of the property as its initial heir, but it had also encouraged the construction of buildings in the surrounding area by implementing a development plan.

The court decided to obtain the opinion of another group of experts. On 28 October 1997, following a second inspection , the experts confirmed the first report. The summary of the report is as follows:

“ The first cadastral survey was carried out in the area on 29 March 1948 . Thus, t he title deed of the plot of land was registered before the coastal law came into force. The plot of land in question is covered by the development plan , approved by the Ministry of Public Works and Settlement. However , at the present time t here is no construction on this plot.

The inspection carrie d out in the surrounding area reveals that the land is situated on the beach which is considered as the prolongation of the sea. The soil has a sandy texture. There is no vegetation on the land, as the soil is not suitable for cultivation.

The land is located within the coastal line. Thus t he plot of land in question has to be under the authority of the State as it is located within the coastline. It cannot be the subject of private property. ”

On 16 December 1999 the SamandaÄŸ First Instance Court upheld the request of the Treasury and decided to ann ul the record in the title deed register.

The summary of the court ' s reasoning in its final decision is as follows:

“At the time when the coastline had been determined, law no. 67 85 on urbanism ( 9 July 1956 ) was in force. The definition of the coastline found in Article 105 of law no. 6785 is similar t o the description in the Coastal L aw (law no. 3621). Article 43 of the Constitution provides that the coasts are under the authority of the State. This assertion is also established by Article 641 of the Civil Code, Article 33 of the Land Registry Law and Article 16 of the Cadastral Law. Thus, coasts cannot be subject to private property rights. As it is stated by the Constitutional Court in its decisions dated 25 February 1986 and 18 September 1991 , the construction of buildings on these lands and the use of these buildings in good faith cannot provide a derogation from this rule.

In the light of the above , the court decides to annul the record in the title deed registry, which was in the name of the applicants. Furthermore it decides to prolong the interim measure, until the court ' s decision becomes final.”

The applicants appealed against this decision , arguing that they had a vested interest on this property that had to be respected by the authorities. Furthermore , they maintained that , according to the cadastral survey which was carried out in 1938 , the plot of land was designated as an unrestricted, public area. Since the cadastral planning of a location can be carried out only once, there cannot be any dispute concerning their property rights over the plot of land in question. Additionally , they claimed that the experts had failed in their establishment of the coastal line.

On 3 October 2000 , in view of the expert reports as well as the established case-law on this matter, the Court of Cassation upheld the decision of the SamandaÄŸ Court of First Instance.

On 30 April 2001 the Court of Cassation dismissed the applicants ' request for rectification of the decision as none of the conditions required by Article 440 of the Code on Civil Procedure were present in the case . The applicants were notified of the decision on 5 June 2001 .

COMPLAINTS

The applicants complain that the authorities ' deprived them of their land without payment of compensation, in violation of their right to property within the meaning of Article 1 of Protocol No.1 . Furthermore , they complain that the domestic courts ordered them to pay all the legal expenses at the end of the proceedings.

The applicants also complain under Article 6 of the Convention that they did not have a fair hearing as the Court of Cassation did not properly evaluate the evidence before it and failed to give a detailed decision a t the appeal stage .

THE LAW

1 . The applicants complain that they did not have a fair hearing before the domestic authorities as the Court of Cassation did not properly interpret the evidence before it and failed to give reasoned judgments at the appeal sta ge .

The Court reiterates that t he manner of application of Article 6 § 1 to proceedings before courts of appeal depends on the special features of the proceedings involved. A ccount must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein ( Ekbatani v. Sweden , judgment of 26 May 1988 , Series A no. 134, p. 13 , § 27) . Moreover Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument ( Van de Hurk v. the N etherlands , judgment of 19 April 1994, Series A no. 288, p. 20, § 61). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case ( Ruiz Torija v. Spain and the Hiro Balani v . Spain judgments of 9 December 1994 , Series A nos. 303-A and B, p. 12, § 29, and pp. 29–30, § 27).

The Court notes that the decision of the SamandaÄŸ First Instance Court dated 16 December 1999 was detailed and precise. It observes that the Court of Cassation upheld the decision of the first instance court relying on specific decisions of the court which constitute legal precedent s to the present case. Moreover it dismissed the applicants ' request for rectification of the decision solely on procedural grounds.

The Court therefore considers that , on the whole, the applicants ' case had been examined by the domestic courts in depth. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain that the S tate authorities ' seizure of their land without paying any compensation was in violation of Article 1 of Protocol no. 1 . They further complain that the domestic courts ordered them to pay all legal expenses at the end of the proceedings.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanim ously

Decides to adjourn the examination of the applicants ' complaint concerning their deprivation of their property ;

Declares the remainder of the application inadmissible.

S. Naismith J.-P. Costa              Deputy Registrar President