Communicated on 12 December 2019

SECOND SECTION

Application no. 23721/11 Gülsüm AYDI N and others against Turkey lodged on 2 February 2011

SUBJECT MATTER OF THE CASE

The application concerns the applicants ’ claim for the author rights regarding a folk music song, which according to them was composed by their testator, I.A.

In 2006 the applicants lodged an action against a production company and a singer, claiming compensation on account of the allegedly unlawful use and distribution of I.A. ’ s composition. In support of their claim, they provided the Ankara Intellectual Property Court with a previous court decision delivered by the Ankara Civil Court, in relation to a compensation action lodged by them against another singer for the use of the same song. That decision, which became final in 2002, established that I.A. had been the author of the song at issue and that the applicants as his heirs had rights to author ’ s fees.

In 2008 the Intellectual Property Court dismissed the applicants ’ case. In so doing, it took account of two expert reports concluding that I.A. had not been the author of the folk song at issue, which had been passed on from previous generations, but the reference person who had introduced the song to the wider public ( kaynak ki şi ). As regards the previous judgment concluding otherwise, the domestic court stated that that judgment could not be considered conclusive for the case at issue, as the defendants in the present case had not been party to that set of proceedings. The domestic court ’ s judgment became final on 6 July 2010 by a decision of the Court of Cassation.

The applicants complain under Article 6 of the Convention that their right to a fair trial was violated on account of the Intellectual Property Court ’ s failure to take account of I.A. ’ s author rights which had been established by the judgment of the Civil Court. They also argue that the domestic court relied solely on the expert reports prepared by certain personnel of the State television, who, according to them, could not be considered impartial. Without relying on any provision of the Convention, the applicants complain of a violation of their right to property .

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the principle of legal certainty respected in the impugned proceedings, in view of the judgment of the Ankara Civil Court dated 14 March 2002 (E: 2001/887, K: 2002/137), which had ruled previously on the subject matter of the case before the Intellectual Property Court (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII, and Rozalia Avram v. Romania , no. 19037/07 , § 42, 16 September 2014)?

Did the Ankara Intellectual Court provide sufficient reasoning in its judgment regarding the applicants ’ submissions about their author rights established by a previous judgment (see Hiro Balani v. Spain , 9 December 1994, Series A no. 303 ‑ B)?

2. Did the applicants have a “possession” within the meaning of Article 1 of Protocol No. 1? In view of the final judgment of the Ankara Civil Court establishing I.A. as the author of the musical work at issue, did the applicants have the author rights to that work or a legitimate expectation to obtain those rights? Taking into account the relevant provisions of Law no. 5846 on Intellectual and Artistic Works, what are the conditions to establish the author of a work and to provide copyright protection to that person?

Has there been a violation of the applicants ’ right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1? In particular, w ere the applicants provided with sufficient procedural guarantees during the proceedings before the Intellectual Property Court (see Gereksar and Others v. Turkey , nos. 34764/05 and 3 others, 1 February 2011; contrast Melnychuk v. Ukraine ( dec. ), no. 28743/03, ECHR 2005 ‑ IX)?

APPENDI X

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Gülsüm AYDIN

01/01/1929

Turkish

Ankara

2Ali Naki AYDIN

12/05/1955

Turkish

Istanbul

3Yadigar ORHAN

01/01/1951

Turkish

Ankara

4UÄŸurcan ÅžAHÄ°N

01/06/1965

Turkish

Ludwigshafen