SECOND SECTION

DECISION

Application no. 26660/05 Nıngur NOYANALPAN and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Committee composed of:

Julia Laffranque, President, Stéphanie Mourou-Vikström, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 19 July 2005,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix. When lodging the application, the applicants were not represented by a legal representative before the Court. The first applicant, Ningur Noyanalpan, was given leave to represent himself and the second applicant, Canan Aksoy, in the proceedings before the Court. The remaining applicants failed to appoint a legal representative despite having been requested by the Registry ’ s letter dated 31 October 2017 and subsequently by the registered letter dated 12 January 2018, nor did they seek leave to present their own case.

2. The Government were represented by their Agent.

A. The circumstances of the case

1. Background of the case

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

4. The applicants owned flats in apartment blocks in Ankara since the 1970s. They claimed that they had bought the flats in question because they had been situated in a quiet residential area with green space and a children ’ s park across.

5. In 1989 the park area across from the applicants ’ apartment was sold to a private company (“the Hospital”).

6. On 21 October 1993 the Çankaya Municipality granted a construction permit to the Hospital for the purpose of building a private hospital.

7. During the construction of the building, which lasted several years, the applicants claimed that they were disturbed by construction noise, especially during the night, traffic nuisance as well as uncollected waste.

8. On 3 July 1998 the Hospital applied to the municipality for a building permit (“ yapı kullanım izni ”). The municipality did not give a response to this request.

9. The Hospital made an application with the Ministry of Health arguing that the lack of response on the part of the municipality could be taken as an implied approval and therefore requested the Ministry to grant it a hospital license.

10 . On 30 July 2018 the Ministry of Health granted the Hospital a private hospital license.

11. On 31 August 1998 the applicant Hadiye Nugay made an application to the noise control department of the Ankara Governor ’ s office complaining about the noise level in her flat, specifically in her bedroom, due to the noise emanating from the Hospital ’ s ventilation and electricity generator systems.

12. Based on the on-site examinations carried out in the applicant ’ s flat on 3 August 1998 and 4 September 1998, the experts from the noise control department of the Ankara Governor ’ s office established that the noise levels in the applicant ’ s bedroom exceeded the permitted limits. The Governor ’ s office further indicated that they would contact the Ministry of Health to re-examine the permit given to the Hospital on the basis of the findings concerning noise nuisance and its effects on the environment.

13. On 18 October 1998 the Ministry of Health ’ s relevant department informed the Hospital of the findings concerning excessive noise levels and gave the Hospital two months to take the necessary measures to reduce noise pollution.

14. On 18 May 1999 the authorities wanted to conduct another inspection in the applicant Hadiye Nugay ’ s apartment to follow-up on the noise levels but she did not give them permission on the grounds that judicial review proceedings had been lodged with respect to the Hospital ’ s permits.

2. Civil Proceedings for action to convert apartment units back to residential units

15. In the meantime the Hospital bought five flats in the building where the applicants resided. They converted the flats into offices and a cafeteria for the Hospital staff.

16. On 13 December 1999 the applicants Ayşenur Noyanalpan and Selahattin Yazıcı, brought a case before the Ankara Magistrates ’ Court against the Hospital and other defendants in relation to the units that have been converted into commercial spaces in their building. They requested that court to order the cessation of the use of the apartment units for commercial purposes and the conversion of those units into residences.

17. On the basis of an on-site examination and an expert report taken out during the course of the proceedings, the Ankara Magistrates ’ Court found it established that the defendants were using the flats in question as offices for the adjacent Hospital building and that this situation had been contrary to zoning and building regulations as well as the land registry records. It therefore granted the applicants ’ request on 4 July 2000 and ordered the defendants to convert the flats to their former residential state within forty-five days.

18. The decision was upheld on appeal.

19. On 25 July 2000, the applicants started enforcement proceedings against the defendants.

20. It appears that the decision has not been enforced.

3. Administrative proceedings for the cancellation of the Hospital ’ s license

21. On an unspecified date the applicant İbrahim Ethem Özbakır filed an action before the Ankara Administrative Court against the Ministry of Health requesting the annulment of the Hospital ’ s license (see paragraph 10 above). The Hospital intervened in the proceedings in favour of the Ministry.

22 . In its interim decision of 28 July 1999 the Ankara Administrative Court ordered a stay of execution of the Hospital ’ s licence. It held that the Hospital was constructed in an area which had been designated only for residences and that a hospital was not provided for in the zoning plan and that the Çankaya Municipality had not issued a building permit.

23. The Hospital and the Ministry of Health ’ s appeal against the stay of execution decision was dismissed by the regional administrative court on 22 September 1999.

24 . In the meantime, that is to say on 14 October 1999, the Çankaya Municipality granted the Hospital a building permit.

25. On 17 November 1999 the Ankara Administrative Court annulled the Hospital ’ s license on the same grounds as those indicated in its stay of execution decision (see paragraph 22 above).

26. Despite the appeal of the Ministry and the Hospital, the decision of the Ankara Administrative Court was upheld by the Supreme Administrative Court on 18 October 2000.

4. Administrative Proceedings for the cancellation of the building permit

27. On an unspecified date, a resident in the applicants ’ building brought a case against the Çankaya Municipality before the Ankara Administrative Court for the annulment of the building permit of 14 October 1999 (see paragraph 24 above). The Hospital intervened in the proceedings in favour of the municipality.

28 . On 28 September 2000 the Ankara Administrative Court set aside the building permit, holding that the development plans in a scale of 1/5000 did not provide for a hospital in the area and that the development plans in the scale of 1/1000 still designated the area for residential use.

29 . On 12 April 2001 the Supreme Administrative Court on appeal from the defendant stayed the execution of the Ankara Administrative Court ’ s decision of 28 September 2000 on the grounds that a new development plan in a scale of 1/5000 was in the process of being approved by the Ankara Metropolitan Municipality and that therefore a decision could not be taken with respect to the Hospital ’ s building permit until that process was final. On 14 February 2002 the Supreme Administrative Court remitted the case to the Ankara Administrative Court for a re-examination.

30. After remittal of the case, the Ankara Administrative Court examined whether the new development plan in a scale of 1/5000 had been approved by the Mayor of the Ankara Municipality. Having established that the new plan had been rejected by the Mayor and a revised plan had not been submitted in the meantime, it annulled the Hospital ’ s building permit on 8 October 2003.

31. On 26 March 2004 the Supreme Administrative Court upheld the decision of Ankara Administrative Court.

5. Proceedings initiated by the Hospital against the Ministry of Health

32. The Çankaya Municipality annulled the building permit of the Hospital on the basis of the decision of the Ankara Administrative Court (see paragraph 28 above). The Ministry of Health therefore considered that the private hospital license could not be sustained and therefore informed the Hospital in its letter of 16 February 2001 that it could no longer admit patients and gave the Hospital fifteen days to complete the treatment or otherwise transfer its patients to suitable hospitals.

33. It appears that the Hospital filed two separate cases in order to have the decision of the Ministry of Health of 16 February 2001 set aside. In that respect it made an application before the Ankara Civil Court and the Ankara Administrative Court and requested that an interim measure be taken in order to stay the execution of the decision of the Ministry of Health. It argued that there were patients who were recovering from heart surgeries and could not be moved, prospective patients referred from the Social Security Institution (“SSK”) who had surgeries scheduled, and embryos in the process of in-vitro fertilisation connected to machines. It further submitted that the Ankara Metropolitan Municipality had altered its development plan on a scale of 1/5000 which now provided for a hospital in the area where the Hospital was situated and that therefore the Hospital building ’ s situation had been regularized.

34 . Both courts granted this measure on 13 March 2001 and 29 March 2001 respectively. They held that the execution of the Ministry of Health ’ s decision would cause irreversible harm to the Hospital and its patients.

35. On 23 March 2001, the applicant İbrahim Ethem Özbakır objected against the Ankara Civil Court ’ s ruling on the grounds that that court lacked jurisdiction to issue an interim measure on a dispute which fell exclusively under the competence of administrative courts. Referring to the decision of the Ankara Administrative Court of 17 November 1999, the applicant submitted that there was a final and binding court judgment on the issue of the Hospital ’ s license. He further argued that the Hospital was not acting in good faith since it had been aware of the final court judgment for it had intervened in that dispute as a civil party and that therefore it must have known the consequences of that decision. He finally submitted that the development plans of the municipality had not been approved since there had been objections to it.

36. On 25 April 2001 on the basis of the objections of the applicant İbrahim Ethem Özbakır, the Ankara Civil Court rejected the case on lack of jurisdiction holding that the dispute fell under the competence of administrative courts.

37. In the meantime, that is to say on 26 June 2001, the Ministry of Health issued a new hospital license to the Hospital pursuant to the decision of the Ankara Administrative Court of 29 Mart 2001 (see paragraph 34 above).

38. On 25 September 2001 the Ankara Administrative Court held that the cancellation of the Hospital ’ s license could not be sustained in the light of the decision of the Supreme Administrative Court of 12 April 2001 (see paragraph 29 above).

39. On 25 March 2005 the Supreme Administrative Court quashed the decision of the Ankara Administrative Court of 25 September 2001.

6. Administrative proceedings against the Ministry of Health for non-enforcement of court judgments and the incompatibility of some provisions of the private hospital regulations

40. On an unspecified date the applicant Selahattin Yazıcı made an application with the Ministry of Health and requested the Hospital ’ s closure on the basis of the above mentioned court decisions annulling the Hospital ’ s building permit and license.

41. The Ministry of Health did not reply to this request. The applicants subsequently learned that the Ministry of Health had passed a new regulation allowing private hospitals to operate in residential areas.

42. On 12 July 2004 the applicant, Selahattin Yazıcı, brought a case before the Supreme Administrative Court against the Ministry of Health, arguing that inertia on part of Ministry of Health for not taking steps in closing the hospital was unlawful. He further submitted that certain passages of the new regulation passed by the Ministry of Health was incompatible with the Private Hospitals Act and therefore asked the Supreme Administrative Court to strike them down.

43. On 25 March 2005 the Supreme Administrative Court partially granted the applicant ’ s request and held that the Ministry of Health ’ s implied rejection for taking action to stop the Hospital ’ s operation had been unlawful given the final court decisions in the matter.

44. In their observations, the Government informed the Court that the Hospital continues to operate.

B. Relevant domestic law

45. A description of the relevant law with respect to the right to living in a healthy environment and the duty of domestic authorities to enforce court judgments can be found in Okyay and Others v. Turkey ( no. 36220/97, §§ 46, 50 and 57-59, ECHR 2005 ‑ VII )

46 . Section 2 of the Administrative Procedure Act (Law no. 2577) provides that anyone whose personal interests have been violated as a result of an unlawful administrative act can bring an action for annulment of that act. An administrative court suit can also be brought on account of a violation of a personal right by an administrative act or action. Furthermore Section 5(2) of Law no. 2577 reads:

“The filing of an action by a common petition by more than one person requires a common right or interest on the part of the plaintiffs and similarity in respect of the facts and legal reasons.”

COMPLAINTS

47. The applicants complained under Article 8 of the Convention that their health suffered, in particular due to the intolerable levels of noise, and their living environment deteriorated as a result of the Hospital operating in their neighbourhood. They further complained under Article 6 of the Convention about the failure of the domestic authorities in enforcing the various courts ’ judgments ordering the Hospital ’ s closure.

THE LAW

A. The parties ’ submissions

48. As a preliminary manner, the Government argued that the application must be struck out in respect of all applicants who did not appoint a legal representative and failed to respond to the Court ’ s letters.

49. The Government further argued that the applicants Ningur Noyanalpan, Canan Aksoy, Halis Aksoy and Hadiye Nugay had not lodged proceedings before domestic courts alleging a violation of their rights under the Convention and therefore they had failed to exhaust domestic remedies. As regards the remaining applicants, the Government argued that their application had been lodged outside the six-month time limit.

50. The applicants Ningur Noyanalpan and Canan Aksoy submitted that when they had set out to bring to an end the nuisances caused by the Hospital ’ s operation, they had decided with the other applicants to pursue legal and administrative remedies separately so as to save time and expenses. Even though they had not been parties of the proceedings, they maintained that they shared a common interest with the applicants who lodged judicial proceedings.

B. The Court ’ s assessment

1. As regards the applicants Ayşenur Noyanalpan, Halis Aksoy, Hadiye Nugay, İbrahim Ethem Özbakır and Selahittin Yazıcı

51. The Court reiterates that, according to its practice, failure to comply with the requirement of proper legal representation, as defined in Rule 36 §§ 2 and 4, may result in the discontinuation of the proceedings (see, inter alia , Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006, and R.W. v. the Netherlands (dec.), no. 37281/05, 14 September 2010).

52. The Court notes that the applicants were asked by the Court on two occasions, on 31 October 2017 and 12 January 2018, to designate a representative in the proceedings before the Court (see paragraph 1 above). However, the applicants did not reply to these letters. Having regard to the fact that the last letter contained a clear and final warning that the case might be struck out of the Court ’ s list of cases unless they designated a representative by 12 February 2018, and this time-limit has long since passed, the Court can discern no reason to deviate from its practice of considering that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention; see Grimaylo , ibid.; R.W. v. the Netherlands , ibid.; and Engwer v. Germany (dec.) , no. 76871/12, 25 March 2014).

53. Moreover, the applicants ’ failure to reply to the Court ’ s last two letters may be seen as an indication that they no longer wish to pursue their application within the meaning of Article 37 § 1 (a) of the Convention. Lastly, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

54. Accordingly, the Court considers that the present application in so far as it was brought by the applicants Ayşenur Noyanalpan, Halis Aksoy, Hadiye Nugay, İbrahim Ethem Özbakır and Selahittin Yazıcı should be struck out of its list of cases.

2. As regards the applicants Ningur Noyanalpan and Canan Aksoy

55. The Court notes that Article 35 § 1 of the Convention requires applicants to have normal recourse to remedies which are available and sufficient to afford redress in respect of the alleged breaches.

56. Furthermore the Court notes that section 2 and 5(2) of Law no. 2577 guarantee a right to a person to initiate separate proceedings or to lodge a common petition by more than one person provided that they have a common interest (see paragraph 46 above). The Court however notes that the applicants Ningur Noyanalpan and Canan Aksoy have failed to show that they had lodged a separate complaint before the national courts, or took part in the proceedings lodged by other applicants, claiming to be a victim of an alleged violation of their rights under Article 8 of the Convention. Consequently, the Court considers that they have failed to exhaust domestic remedies and their complaints under Article 8 must be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

57. As regards their complaints under Article 6 of the Convention concerning non-enforcement of court judgments, the Court reiterates that a person cannot complain about a violation of his or her rights in proceedings to which he or she was not a party. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to strike the application out of its lists of cases in so far as brought by the applicants Ayşenur Noyanalpan, Halis Aksoy, Hadiye Nugay, İbrahim Ethem Özbakır and Selahittin Yazıcı;

Declares the application inadmissible in so far as brought by the applicants Ningur Noyanalpan and Canan Aksoy .

Done in English and notified in writing on 9 May 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President

Appendix

No.

Firstname LASTNAME

Birth year

Nationality

Place of residence

Represented by

Ningur NOYANALPAN

1944Turkish

Ankara

Himself

Canan AKSOY

1947Turkish

Ankara

N. Noyanalpan

Halis AKSOY

1941Turkish

Ankara

AyÅŸenur NOYANALPAN

1955Turkish

Ankara

Hadiye NUGAY

1946Turkish

Ankara

İbrahim Ethem ÖZBAKIR

1949Turkish

Ankara

Selahattin YAZICI

1931Turkish

Ankara