THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51326/99 
by Ayhan Enis DAĞALAŞ and Others 
against Turkey

The European Court of Human Rights (Third Section), sitting on 29 September 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr R. Türmen
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska, 
 Ms R. Jaeger, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 21 April 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names appear in the annex, are Turkish nationals. They are represented before the Court by Ms M. Umut Akarçay, a lawyer practising in Istanbul.

A.  The circumstances of the case

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

The applicants were heirs to plots of land in the village of Zekeriyaköy in Sarıyer, Istanbul.

On 29 June 1938 the Forest Directorate conducted a cadastral survey pursuant to Law on Agricultural Land Planning and designated the applicants’ land as private forest.

On 13 July 1945, the Law no. 4785, which provided for the nationalisation of all forest areas, came into force. On 21 May 1947 the applicants’ land was nationalised and it was registered in the name of the Treasury as “Hamitağa State Forest”.

In 1957 the applicants brought an action before the Sarıyer First Instance Court in Civil Matters. Relying on Article 2 (b) of Law no. 4785, they filed a claim for the restitution of the land. The court requested the Ministry of Agriculture’s opinion concerning the legal status of the land. On 28 January 1958 the Ministry informed the court that, in view of the requirements provided under Article 2 (b) of Law no. 4785, the land in question did not have the necessary characteristics to be removed from “nationalised land” status. Following the notification of the Ministry’s opinion, the applicants did not pursue their case. The case was consequently struck off.

In 1967 some of the applicants initiated another action before the Sarıyer First Instance Court in Civil Matters with the same claim. The court requested the Ministry of Agriculture’s opinion once again. In a letter dated 30 January 1968 the Ministry reiterated its opinion given in the previous case.

In 1969 the applicants challenged the Ministry of Agriculture’s opinion of 30 January 1968 before the Supreme Administrative Court. In 1971 the Supreme Administrative Court dismissed the applicants’ case. Subsequently, the Sarıyer First Instance Court in Civil Matters also dismissed the applicants’ claim.

In 1984, due to the amendments made in the Law on Forests (amended by Law no. 2896), the Forest Cadastral Commission conducted a cadastral evaluation (aplikasyon çalışması) in the area. The purpose of this evaluation was to detect the forests which were not yet included in the cadastral map and to remove the forest status of the lands which had lost their characteristics defined in the law.

The Forest Cadastral Commission’s report was made public on 29 November 1985. It concluded that a plot of land which was located within the borders of the Hamitağa State Forest had lost its characteristics as a forest in accordance with Article 2 of the Law no. 4785. It was therefore necessary to remove it from the “state forest” status. The report became final after one year as there were no objections lodged against it. The plot was still registered in the name of the Treasury; however, it was no longer designated as forest area.

In 1988, due to the recent amendments in the Law on Forests (amended by Law no. 3302), the Forest Cadastral Commission re-evaluated the status of the Hamitağa State Forest once again. The Commission concluded in its report that another plot of land had to be removed from the “state forest” status as it had lost its characteristics as a forest. The commission’s decision was pronounced on 7 March 1988.

On 7 September 1988 some of the applicants lodged a complaint with the Sarıyer Court of first Instance in Civil Matters demanding restitution of the property rights of the Hamitağa State Forest and the registration of the land in their names. They contended that the land in question never had the qualifications to be nationalised in accordance with the Article 2 of the Law no. 2785.

In the meantime, on 12 September 1988 the rest of the applicants initiated a separate case before the Sarıyer Court of first Instance in Civil Matters, concerning the same subject matter and claim.

On 19 December 1988 the court decided that it did not have jurisdiction and transferred both cases to the Sarıyer Cadastral Court. The first case was registered under no. 1989/71 and the second under no. 1989/47.

The first hearing of the case no 1989/47 was held on 16 March 1989. The applicants’ lawyer requested the court to delay the hearings in order to submit evidence.

On 23 May 1989 the applicants’ lawyer submitted the evidence.

At the hearing of 9 August 1989 the applicant’s lawyer contended that the land registry records submitted to the court by the administrative authority were not correct. He therefore requested additional time to provide the accurate records. The next hearing was scheduled for 26 October 1989.

At the hearing of 26 October 1989 the land registry records were not yet provided before the court.

Neither the applicants nor their representative attended the following six hearings.

In the case no. 1989/71 the applicants did not attend the hearings until January 1990. At the hearing of 25 January 1990 the applicants’ lawyer requested the court to grant additional time in order to submit evidence.

At the hearing dated 3 December 1990 the court decided to join the two case files. Furthermore it requested from the applicants to provide the court with the certificates of inheritance.

On 4 February 1991 the court decided to assign an expert to translate the register of the title-deeds which were written in Ottoman Turkish, in the Arabic alphabet. At the following three hearings the court waited for the expert’s report.

On 29 July 1991 the expert requested the court to grant him an extension for preparing his report. The applicants’ lawyer did not attend the hearing.

On 21 November 1992 the expert report was submitted with the court. Both parties requested time to submit their observations on the report. The court granted their request. Moreover other heirs to the land in question requested to intervene in the proceedings.

At the hearing of 10 March 1992 the court decided to obtain the opinion of the Forest Administration on the land in question.

At the hearing of 25 May 1992, upon the requests of both parties, the court rescheduled the next hearing for 6 August 1992.

On 14 August 1992 the court carried out an on-site inspection together with the cadastral experts.

On 6 October 1992 the experts submitted their report to the court. Both parties requested the court to grant additional time to examine the report.

On 19 November 1992 the court decided to ask further information from the Forest Administration concerning the nationalisation procedure of the land. The Forest Administration submitted its reply on 19 February 1993. The court decided to send this reply to the cadastral experts and ask their opinion.

Furthermore, the court decided to appoint another expert to determine the applicants’ shares of inheritance. The report on the heritage was submitted to the court on 23 March 1994.

On 19 January 1996 the Sarıyer Cadastral Court ruled in favour of the applicants. The Treasury appealed.

On 13 December 1996 the Court of Cassation quashed the decision of the Sarıyer Cadastral Court. It held that the applicants’ claim for restitution of property provided under Law no. 4785 was already dismissed by the Sarıyer First Instance Court in Civil Matters in the beginning of 1970’s. Moreover, as regards the applicants’ objection to the cadastral commission’s report dated 7 March 1988 the court held that the action was filed out of time. It maintained that according to the law on forests the actions brought against the cadastral evaluations had to be lodged within one year from the pronouncement of the commission’s decision. The commission report pronounced in 29 November 1985 already concluded that the land in question, except a small part which no longer had the necessary qualifications, had “state forest status” and it was called “Hamitağa State Forest”. This report became definitive on 29 November 1986 as there were no objections lodged against it. The re-evaluation carried out in 1988 was, in essence, the same as the previous one. The only difference was that, in 1988, the Cadastral Commission decided to remove a further part of the land from state forest status. Thus the objection should have been filed with the court following the first evaluation of the land. The Court of Cassation therefore concluded that the applicants’ case must be rejected for failure to comply with the statutory time limit. It further concluded that, in any event, the land in question did not have the necessary physical characteristics to change its status to private forest.

The applicants requested rectification of the Court of Cassation’s decision. On 22 October 1997 their request was rejected.

On 16 January 1998 the Sarıyer Cadastral Court followed the Court of Cassation’s reasoning and dismissed the applicants’ case.

On 11 May 1998 the Court of Cassation upheld the decision of the Sarıyer Cadastral Court.

On 26 October 1998 the Court of Cassation rejected the applicants’ request for rectification of the judgment.

B.  Relevant domestic law

1.  Law no. 4785 (9 July 1945)

Article 1 provides that the forests which belong to the private or legal persons, foundations, villages, municipalities, provincial administration or public corporate bodies at the date of the entry into force of this law are nationalised in accordance with this law. These forests are registered in the name of the Treasury without any notification or procedure.

Article 2 lists the physical characteristics of the land in question which could form an exception to the rule provided under Article 1.

Article 5 provides that the landowners whose lands were nationalised in accordance with this law should submit an application with the forest administration within one year from the date of the entry into force of this law. If they fail to do so within the statutory time-limit they will lose the right to receive compensation for the nationalisation of their lands.

2.  Law no. 5658 (24 March 1950)

Article 1 provides that the lands which were nationalised in accordance with the Law no. 4785 can be returned to their previous owners if they have certain physical characteristics listed in this Article.

In accordance with the provisional Article of the same law, those who failed to bring an action within the time-limit provided in Article 5 of the Law no. 4785, can request compensation for nationalisation of their land within one year from the date on which this law has come into force.

3.  Law no. 6831

Article 11 provides that it is possible to challenge the Cadastral Commission’s reports by filing an action before the cadastral courts within six months (Law no. 3302 amended this time limit to one year) from the date on which these reports are announced. This time-limit is ten years for those who have the title deed of the land in question.

4.  Law no. 3402 (Cadastral Law)

Article 12 provides that the statutory time-limit to file an objection against the rights, limitations, and assertions found in the cadastral records, is ten years starting from the date on which these records become definitive. After the expiration of this time-limit, it is not possible to file an action by relying on the legal facts prior to the cadastral planning.

Article 22 of the same law evokes that the cadastral planning of a location can be carried out only once.

COMPLAINTS

The applicants complained under Article 6 of the Convention about the excessive length of the civil proceedings.

They complained under Article 1 of Protocol No. 1 that they were deprived of their right to the peaceful enjoyment of their property as it had been nationalised, without paying compensation. They also contended that the domestic authorities’ refusal to grant their claim for restitution of their property infringed their property rights.

THE LAW

1.  The applicants complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement provided under Article 6 § 1 of the Convention:

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

The Government contended that the length of the proceedings was mainly due to the applicants’ requests for additional time and their lawyer’s failure to attend several hearings. They also submitted that the court had to wait for the expert reports and had to examine the old litigation files which concerned the same subject matter.

The applicants did not submit any observation on this issue.

The Court notes that the period to be taken into consideration began on 7 September 1988, when the applicants brought an action before the Sarıyer Court of First Instance in Civil Matters, demanding restitution of the Hamitağa State Forest, and ended on 26 October 1998, when the Court of Cassation upheld the judgment of the Sarıyer Cadastral Court. The proceedings thus lasted approximately ten years.

The Court reiterates that the reasonableness of the length of the civil proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Furthermore, the Court may, as appropriate, make an overall assessment of the length of the proceedings (see, Cifola v. Italy, judgment of 27 February 1992, Series A no. 231, p. 9, § 14).

The Court notes that the case was examined in seven instances, four of which were at the appeal level. Two proceedings which were initiated by different applicants were later on joined by the court. There were eleven plaintiffs four of which were represented by their heirs.

Furthermore, the Court considers that the civil proceedings in question involved both factual and legal complexity. It concerned a dispute over a plot of land which was nationalised more than forty years ago. The cadastral survey of the land in question was conducted in 1938. The cadastral court had to examine the case files dated 1957 and 1967. Furthermore, the court had to request the help of an expert to interpret the land registry certificates which were written in Ottoman Turkish. The court also requested expert opinions on the legal status of the land in question three times as some issues needed further clarification.

The Court further observes that the applicants failed to attend a number of hearings.

In view of the above, the Court considers that, in the present case, a total period of ten years cannot be considered unreasonably long. It further notes that the applicants had not shown that there were any substantial periods of inactivity attributable to the judicial authorities.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

2.  The applicants complained under Article 1 of Protocol No. 1 that the nationalisation of their land in 1947 without paying any compensation and the domestic authorities’ refusal to grant their claim for restitution of the land infringed their property rights.

The Government maintained that the applicants’ claim for restitution was rejected by the Court of Cassation due to their failure to comply with the statutory time-limit. Moreover they failed to request compensation for the nationalisation of their land in accordance with the Article 5 of the Law no. 4785. Furthermore the Government maintained that the applicants lost the possession of their land in 1947. In view of the fact that the Court can only consider acts that occurred after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions, the applicants’ complaint concerning the alleged deprivation of their property had to be rejected for being incompatible rationae temporis.

The applicants disputed the domestic courts’ decisions contending that there was no statutory time-limit in domestic law to claim the restitution of nationalised property. Moreover they alleged that the land in question should never have been nationalised as it did not have the necessary physical qualifications provided in Article 2 of the Law no. 4785.

The Court recalls that the Convention institutions have consistently held that “possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised. On the other hand, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which has lapsed as a result of the failure to fulfil a condition (see the recapitulation of the relevant principles in Kopecký v. Slovakia [GC], no. 44912/98, § 35, 28 September 2004).

The Court first observes that, in the present case, the applicants lost possession of their land on 21 May 1947 when, following its allocation as state forest, it was registered in the name of the Treasury. After this date they never recovered their property rights. Accordingly, proprietary interest invoked by the applicants cannot be characterised as an “existing possession”. It therefore remains to be determined whether the applicants had any "legitimate expectation" of realising their claim for restitution of property.

The Court notes that Article 11 of the Law no. 6831 provides that the actions brought against the cadastral evaluations had to be lodged within one year from the announcement of the cadastral commission’s decision. In this respect the question in dispute is whether the applicants could be said to have satisfied this procedural requirement.

In their respective decisions the Court of Cassation and the Sarıyer Cadastral Court held that the applicants should have filed their action following the initial evaluation which was pronounced on 29 November 1985. Thus the applicants’ case had to be rejected for failure to comply with the statutory time limit. Moreover they also held that the land in question did not have the qualification to change its status to private forest.

Having regard to the information before it and considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see García Ruiz v. Spain [G.C.] no. 30544/96, § 28, ECHR 1999-I and Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1988-II, p. 540, § 59), the Court considers that it cannot substitute its view for that of the Court of Cassation on the applicants’ compliance with the statutory time-limit laid down in Article 11 of the Law no. 6831 as well as on the physical characteristics of the land in question which could form an exception to the nationalisation rule in accordance with Article 2 of the Law no. 4785 (see, mutatis mutandis, Jantner v. Slovakia, no. 39050/97, § 32, 4 March 2003).

It is true that the Sarıyer Cadastral Court, which decided the case at first instance, ordered restitution of the property rights of the Hamitağa State Forest to the applicants and adjustment of the title deed registry accordingly. The first-instance judgment was subsequently overturned, in the context of the same proceedings and without having acquired final and binding effect, by the Court of Cassation. Thus, the first judgment delivered by the Sarıyer Cadastral Court did not invest the applicants with an enforceable right to have the land restored (see, mutatis mutandis, Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). That judgment was therefore not sufficient to generate a proprietary interest amounting to an “asset”.

Thus under the relevant law, as applied and interpreted by domestic authorities, the applicants neither had a right nor a claim amounting to a legitimate expectation in the sense of the Court’s case-law to obtain restitution of the property in question and therefore no “possession” within the meaning of Article 1 of Protocol No. 1.

It follows that the complaint under Article 1 of Protocol No. 1 are incompatible ratione materiae 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

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

 

APPENDIX

1. Ayhan Enis Dağalaş, born in 1934 and lives in Istanbul

2. Melahat Bayraktar, born in 1933 and lives in Istanbul

3. Bülent Bayraktar, born in 1955 and lives in Istanbul

4. Levent Bayraktar, born in 1964 and lives in Istanbul

5. Ali Haner Bayraktar, born in 1966 and lives in Istanbul

6. Aydoğan Bayraktar, born in 1936 and lives in Istanbul

7. S. Zeynep Sefa, born in 1958 and lives in Balıkesir

8. Güzide Dede, born in 1925 and lives in Istanbul

9. Nihal Dede, born in 1955 and lives in Istanbul

10. Halit Dede, born in 1952 and lives in Istanbul

11. Bülent Dede, born in 1947 and lives in Eskişehir

12. Betül Seraç, born in 1952 and lives in Istanbul

13. Gönül Seraç, born in 1956 and lives in Antalya

14. Aynur Bayraktargil, born in 1940 and lives in Istanbul

15. Ayvaz Bayraktargil, born in 1971 and lives in Ankara

16. Selma Bayraktargil, born in 1970 and lives in Ankara

17. Nezih Başaran, born in 1954 and lives in Istanbul

18. Memduh Başaran, born in 1938 and lives in Istanbul

19. Ayfer Topal (Harmankaya), born in 1947 and lives in Istanbul

20. Aysel Boydaş, born in 1935 and lives in Istanbul

DAĞALAŞ AND OTHERS v. TURKEY DECISION


DAĞALAŞ AND OTHERS v. TURKEY DECISION