THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52517/99 by Hüseyin Hamit GÜ NTER against Turkey

The European Court of Human Rights (Third Section), sitting on 16 September 2004 as a Chamber composed of:

Mr G. Ress , President , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 5 August 1999 ,

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 applicant, Mr Hüseyin Hamit Günter, is a Turkish national who was born in 1920 and lives in Istanbul .

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

The applicant is an heir of Mr Mustafa Rıfat Günter and Mrs Rabia Günter.

On 27 March 1985, due to their old age and poor health and as they did not have any relative who could take care of them, Mr Mustafa Rıfat Günter and Mrs Rabia Günter made a nuncupative will, in the presence of two witnesses. According to the drafted agreement which was later on signed by Mr and Mrs Günter, they undertook to give all the property rights of their house to the Darülaceze (the poor people ’ s house in Istanbul ) in exchange for life long support. Following this agreement they were taken to the Darülaceze . Mr and Mrs Günter died on 3 May 1985 and 2 May 1985 respectively.

On 7 May 1985 the Darülaceze requested the Şişli First Instance Court in Civil Matters to probate Mr and Mrs Günter ’ s will. On the same day the court read out the will and recognised the Darülace ze as the legal heir to their property. The decision of the court was notified to the heirs whose names and addresses were known to the court. The applicant was not personally notified of this decision . However a further notification was also made through newspaper publication for those whose name and address was not known to the court.

On 25 May 1993 the applicant brought an action before the Şişli First Instance Court in Ci vil Matters. He alleged that Mr and Mrs Günter ’ s nuncupative will made before the Darülace ze authorities did not satisfy the procedural requirements as they had had no legal capacity due to their old age. He therefore requested the court to declare Mr and M rs Günter ’ s will null and void.

The first hearing took place on 14 July 1993 . The representative of the applicant requested time t o submit the list of evidence .

On 10 October 1993 the T reasury filed an action with a different chamber of the same court, also requesting the court declare Mr and Mrs Günter ’ s will null and void.

On 21 October 1993 the applicant submit ted his list of evidence. The court gave time to the defendant to submit their list of evidence .

On 16 December 1993 neither the applicant nor his representatives attended the hearing. As the defendant stated that they did not wish to continue the case, the case was removed from the list.

The applicant renewed the case and on 28 January 1994 the court decided to hold a hearing in April.

On 14 April 1994 the applicant did not attend the hearing, but inst ead he sent a letter of excuse.

At the hearing dated 28 April 1994 the applicant maintained that , as the case initiated before the Istanbul First Instance Court of General Jurisdiction concerning the certificate of inheritance ( veraset ilamı ) of Mr and Mrs Günter was not finalised, he requested the court to postpone the case until after the judicial holiday. The court decided to postpone the hearing until September.

On 20 September 1994 the applicant requested to postpone the hearing to a future date as the case concerning the certificate of inheritance was not finalised.

On 27 December 1994 the parties did not atte nd the hearing. The applicant sent a letter of excuse.

At the hearings dated 7 March 1995 and 30 May 1995 the applicant requested to postpone the hearing s once again , as the case concerning the certificate of inheritance was not finalised.

On 11 July 1995 the court decided to join the Treasury ’ s case with the applicant ’ s case.

On 3 October 1995 the court took the statements of one of the two witnesses named by the applicant. The court was unable to find the other witness as her name was misspelled . It corrected the name of the second witness and sent her an invitation.

At the hearings which took place o n 26 December 1995 and on 2 April 1996 the court postponed the case as the appli cant did not attend the hearing but sent a letter of excuse.

On 27 June 1996 the second witness named by t he applicant gave her statement before the court. As the case concerning the certificate of inheritance was not finalised , the court postponed the case to a further date.

At the hearings dated 5 November 1996 and 29 January 1997 the applicant did not attend the hearing but he once again sent excuse s and informed the court that the case concerning the inheritance certificate was being examined before the Court of Cassation.

On 15 April 1997 the applicant submitted the inheritance certificate to the court.

On 19 June 1997 the applicant requested the Court to consult with the Forensic Medicine Institute before deciding on the legal capacity of Mr and Mrs Günter. The Forensic Medicine Institute informed the court that the documents in the case-file were not sufficient to decide on the matter . On 16 October 1997 the court requested the Darülaceze to send the court all the medical reports concerning Mr and Mrs Günter. On 18 December 1997 the Darülaceze informed the court that they did not posses any of the requested documents .

On 10 March 1998 the Forensic Medicine Institute drafted a report which concluded that by looking at the content of the case-file it was impossible to decide on the matter.

On 17 March 1998 the court gave its final dec ision i n the matter. Firstly it held that the Treasury could not be a party to this case as it did n ot have a right of inheritance. Furthermore it noted that , pursuant to Article 501 of the Civil Code , an action for the annulment of a testamentary disposition ( ölüme bağlı tasarruf ) should be lodged within one year from the date on which the claimant becomes a ware of the reason of nullity or, in any case, within five years after the will was notified to the heirs. A lthough the will of Mr and Mrs Günter was notifi ed to the heirs on 7 May 1985 , the action was brought by the applicant on 25 May 1993 . The court therefore concluded that the applicant ’ s case must be dismissed for failure to comply with the statutory time- limit. The applicant appealed.

On 8 October 1998 the Court of Cassation u pheld the decision of the first instance court. On 15 February 1999 the applicant ’ s request fo r rectification of the decision was dismissed.

COMPLAINTS

The applicant complained that he did not have a fair hearing within a reasonable time. He contended that the equality of arms was not respected in his case. Moreover he complained that he was deprived of hi s right to the peaceful enjoyment of his possession as he did not have a fair trial . He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

THE LAW

1. The applicant complain ed under Article 6 § 1 of the Convention of the length of the civil proceedings, which lasted 5 years 9 months and 20 days. Article 6 § 1 of the Convention provides, in so far as relevant:

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

The Government maintained that neither the applicant nor his representative attended seven of a total of twenty hearings which were held before the Şişli First Instance Court in Civil Matters almost every two and a half months. They therefore contended that the length of the proceedings at issue was essentially caused by the applicant ’ s conduct.

The applicant contended that it was not reasonable that the court decided to dismiss his case for failure to comply with the statutory time-limit after almost five years had elapsed. He argued that as observing the ti me-limits is a procedural requirement , the court should have considered it before examining the merits of the case. He therefore argued that there was no justification for the excessive length of the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ’ s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. It concludes, therefore, that this part of the application is not manifestly ill-founde d within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant alleged under Article 6 § 1 of the Convention that he was deprived of his right to have a fair hearing as the principle of equality of arms was not respected in his case. Moreover, relying on Article 1 of Protocol No. 1 the applicant complained that he was deprived of his property due to the unfairness of the proceedings.

He alleged that the court failed in its interpretation of domestic law when dismissing his case for failure to comply with the statutory time-limit . He claimed that the statutory time-limit should begin to run from 24 May 1993 which is the date on which he became aware of the disputed act .

Moreover h e contended that he was unable to substantiate his arguments before the court as there were no medical reports in the Darülaceze ’ s records concerning the legal capacity of Mr and Mrs Günter. He further complained that the court failed to include the two witness statements in its final decision.

The Government maintained that the court ’ s decision to dismiss the applicant ’ s case for failure to comply with the statutory time-limit was in accordance with the law prevailing at the time of the proceedings.

The Court observes that the applicant ’ s complaints mainly concern the court ’ s interpretation of domestic law. It reiterates that it is not a court of appeal from the decisions of domestic courts and that, as a general rule, it is for those courts to assess the evidence before them. The Court ’ s task under the Convention is to ascertain whether the procee dings as a whole were fair (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999 ‑ I, and mutatis mutandis , Doorson v. the Netherlands , judgment of 26 March 1996, Reports of Judgments and Decisions 1996 ‑ II, p. 470, § 67).

The fact that the courts did not assess the evidence in favour of the applicant does not disclose any appearance of a violation of any Article of the Convention. Moreover the Court notes that Article 6 § 1 of the Convention is not breached simply because the judgment does not deal specifically with one point considered b y the applicant to be relevant. The Court considers that the applicant had the opportunity to put forward his arguments, and his case was dismissed for failure to comply with statutory time-limit which was in accordance with the domesti c law.

The Court further notes that the substance of the applicant ’ s complaint concerning the deprivation of property is closely linked with the fairness of the procedure. Considering the above reasoning, the Court concludes that these complaints are manifestly ill-founded w ithin the meaning of Article 35 § 3 and must be reje cted in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint concerning the length of the proceedings ;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President