AS TO THE ADMISSIBILITY OF
Application no. 7436/02
by İsmail ŞENCAN and Others
The European Court of Human Rights (Third Section), sitting on 1 June 2006 as a Chamber composed of:
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 12 October 2001,
Having deliberated, decides as follows:
The applicants, Mr İsmail Şencan, Ms Hülya Şencan and Mr Nejdet Şencan, are Turkish nationals who were born in 1955, 1973 and 1962 respectively and live in Istanbul. They are represented before the Court by Mr F.S. Yurdakul, a lawyer practising in Ankara.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1989 and 1992 the applicants concluded contracts with third persons, according to which they acquired de facto possession (zilyedlik) of a plot of land in Gökçeada.
On 10 May 1990, 28 August 1991 and 18 May 1992 the applicants filed three actions with the Gökçeada Civil Court of First Instance and requested that the plot in question be registered with their title.
On 11 September 1991 and 16 March 1992 the first-instance court partially accepted the İsmail and Nejdet Şencan’s requests.
On 28 April 1992 and 6 November 1992 the Court of Cassation quashed the judgments of the first-instance court in the cases brought by İsmail and Nejdet Şencan. It held that the Gökçeada Civil Court of First Instance failed to carry out the necessary examination in order to determine the nature of the plot. The cases were then remitted to the first-instance court.
On 12 October 1992 and 15 March 1993 the first-instance court once again partially accepted İsmail and Nejdet Şencan’s cases. On 21 June 1993 the Gökçeada Civil Court of First Instance also partially accepted the third case. In its judgments, the first-instance court held that the fact that the land in question appeared as “meadowland” in the tax registration records did not mean that it could not be the subject of private ownership. The court considered that the land was not “meadowland” officially.
On 18 April 1994 the Court of Cassation quashed the three judgments of the first-instance court. The high court held that the first-instance court should have taken into account the tax registration records and accepted the applicants’ cases only in respect of the parts of the plot which were used for agriculture. It further held that meadowlands could not be subject to private ownership. The cases were remitted to the Gökçeada Civil Court of First Instance.
On an unspecified date, the cases were joined.
On 13 June 1995 the first-instance court again partially accepted the applicants’ cases. In its judgment, the court stated that the plot in question was not designated as “meadowland” in the land registration records and that, therefore, it could be subject to private ownership.
On 24 June 1996 the Court of Cassation once again quashed the judgment of the first-instance Court, holding that according to the documents in the case-file, the plot in question was a meadowland and that therefore could not be registered with the applicants’ title.
On 31 July 1996 the Gökçeada Civil Court of First Instance issued a decision of non-jurisdiction and sent the case-file to the Gökçeada Cadastre Court.
On 5 June 1997 the Gökçeada Cadastre Court rendered its judgment. It held that the land in question was not designated and registered as a “meadowland” and partially accepted the applicants’ case.
On 20 May 1998 the Court of Cassation quashed the judgment of the cadastre court, holding that its previous decision was final and that the first-instance court had to abide by that decision.
On 16 April 1999 the Gökçeada Cadastre Court abided by the Court of Cassation’s decision, holding that according to the tax registration records the land in question was a meadowland and that it could not be subjected to private ownership. The court further held that the land should be officially designated as a second degree conservation area (ikinci derece sit alanı).
On 21 March 2000 the Court of Cassation upheld the judgment of the first-instance court.
The applicants requested rectification of decision.
On 6 April 2001 the Court of Cassation dismissed this request.
On 24 April 2001 the Court of Cassation’s decision was deposited with the registry of the first-instance court. On 30 April 2001 it was served on the applicants’ representative.
The applicants complain under Article 6 of the Convention that the length of the proceedings amounted to a breach of the “reasonable time” requirement.
The applicants allege under Article 6 of the Convention and Article 1 of Protocol No. 1 that the domestic courts failed to assess the facts and the law correctly, thus constituting an unjustified deprivation of their right to property.
1. The applicants complain under Article 6 of the Convention that the civil proceedings were not concluded within a reasonable time.
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.
2. As regards the applicants’ other complaints under Article 6 of the Convention and Article 1 of Protocol No. 1, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence.
It follows that this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of proceedings;
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan
ŞENCAN AND OTHERS v. TURKEY DECISION
ŞENCAN AND OTHERS v. TURKEY DECISION