CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 29860/96                       by Sibel Bilge USLU                       against Turkey          The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 September 1995 by Sibel Bilge USLU against Turkey and registered on 22 January 1996 under file No. 29860/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, who was born in 1963, is a Turkish citizen. She is a lawyer resident in izmir. She is represented before the Commission by Mr Halil ibrahim Uslu, a lawyer practising in izmir.        The facts of the present case, as submitted by the applicant, may be summarised as follows.        The applicant's father, A.B., was one of the co-owners of land in Karadeniz Eregli.        On 29 March 1990 a part of A.B.'s land was designated as a park area as a result of a revision of the local plan by the municipality of Karadeniz Eregli.        On 5 October 1990 the applicant's father brought an action in the Zonguldak Administrative Court. He demanded the annulment of the revision of the plan concerning his land.        On 21 December 1990 a survey of the applicant's father's land was conducted by court order. The experts stated in their report that there was no general interest in designating the relevant part of the land as a "park area".        On 23 January 1991 the Zonguldak Administrative Court ordered that the execution of the plan be suspended.        On 21 March 1991 the same court decided to cancel the municipality's decision to declare the disputed land a "park area".        The municipality appealed to the Supreme Administrative Court which quashed the judgment of the Zonguldak Administrative Court of 21 January 1992 because of insufficient examination by experts.        On 15 April 1992 the Zonguldak Administrative Court ordered a new detailed survey of the land, which was conducted on 12 January 1993. In their report, the experts stated that there was a general interest in designating the relevant land as a park area.        The applicant's father objected to this expert report and the court appointed three new experts to conduct a third survey of the land.        The third survey of the land was conducted on 3 May 1993. The experts submitted their report on 1 January 1994 after an extension of time granted by the court. In their report the experts stated that there was a public interest in the revision of the local plan.        On 24 February 1994 the Zonguldak Administrative Court found against the applicant's father.        The applicant's father died on 19 March 1994.        On 2 May 1994 the applicant appealed to the Supreme Administrative Court.        On 15 February 1995 the Supreme Administrative Court upheld the judgment of the Zonguldak Administrative Court. This decision was served on the applicant on 30 March 1995.   COMPLAINTS   1.    The applicant complains that the length of the civil proceedings between 5 October 1990 and 15 February 1995 (4 years 4 months and 10 days) exceeded the reasonable time requirement laid down by Article 6 para. 1 of the Convention.   2.    The applicant further complains under Article 6 para. 1 of the Convention that her right to a fair trial was breached as regards the national courts' evaluation of the evidence and interpretation of domestic law. She alleges that in her case, the courts finally decided on the basis of the third experts' report which was submitted later than provided for in the Turkish Code of Civil Procedure.   3.    The applicant also alleges under Article 6 of the Convention that she was not given a fair hearing by an independent and impartial tribunal, as in Turkey judges are appointed by the Supreme Council of Judges and Prosecutors whose decisions are not reviewed by a judicial organ pursuant to Article 159 of the Turkish Constitution.   4.    The applicant further invokes Article 1 of Protocol No. 1 to the Convention. She alleges that she has been denied the peaceful enjoyment of her possessions without this being in the public interest.   5.    She further complains under Article 1 of Protocol No. 1 to the Convention that she was not compensated for this interference with the   peaceful enjoyment of her property.     THE LAW   1.    The applicant complains under Article 6 para 1 (Art. 6-1) of the Convention that the length of the civil proceedings between 5 October 1990 and 15 February 1995 exceeded the reasonable time requirement.        Article 6 para. 1 (Art. 6-1) of the Convention states that "in the determination of his civil rights and obligations ... everyone is entitled to a fair ...   hearing within a reasonable time ...".        However, the Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the established case-law, in particular the complexity of the case and the conduct of the applicant and   of the relevant authorities (Eur. Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319, p. 20, para. 59). Furthermore, the Convention organs also consider it appropriate to make an overall assessment of the length of proceedings in some cases (see e.g. Eur. Court HR., Cifola v. Italy judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).        The Commission notes that the period to be taken into consideration began on 5 October 1990, when the applicant brought an action against the municipality's decision in the Zonguldak Administrative Court, and ended on 15 February 1995 by the decision of the Supreme Administrative Court. Therefore, the total length of the proceedings was 4 years 4 months and 10 days. During this period, the Zonguldak Administrative Court   and the Supreme Administrative Court each examined the case twice.        The Commission finds that the proceedings before the Administrative Court were not simple. The court ordered three separate surveys of land, at least one of which was necessitated by the applicant's objections to the previous one.        The Commission finds that there are no delays which may be attributed to the Turkish authorities. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.        In these circumstances and taking into account the particular circumstances of the case, the Commission finds that the proceedings at issue in the present case did not exceed a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that her right to have a fair hearing was breached as regards the national courts' evaluation of the evidence and the interpretation of domestic law. She alleges moreover that the courts finally decided her case on the basis of the third experts' report which was submitted later than it provided for in the Turkish Code of Civil Procedure.        However, the Commission recalls that under Article 19 (Art. 19) of the Convention, its sole task is to ensure observance of the engagements undertaken by the High Contracting Parties in the Convention. It is not competent to examine applications concerning errors of law or fact allegedly committed by the competent national authorities, which are competent in the first place to interpret and apply domestic law (No. 25062/94, Dec. 18.10.1995, D.R. 83, p.77).        In the present case, the Commission finds no evidence to conclude that the national courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the domestic law. The Commission notes especially that the Zonguldak Administrative Court, after the third survey of the land which was conducted on 3 May 1993, decided to extend the time-limit given to the experts.   Therefore, there is no appearance of a violation of the applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention by the national courts.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para.2 (Art. 27-2) of the Convention.   3.    The applicant alleges that under Article 6 para. 1 (Art. 6-1) of the Convention her case was not examined by an independent and impartial tribunal as the judges had been appointed by the Supreme Council of Judges and Prosecutors, whose decisions are not reviewed by a judicial organ pursuant to Article 159 of the Turkish Constitution.        The Commission observes that the applicant does not challenge the subjective impartiality of the Zonguldak Administrative Court judges in her case. She only objects to the fact that they had been appointed by the Supreme Council of Judges and Prosecutors.        The Commission recalls that "in order to establish whether a body can be considered independent, regard must be had, inter alia, to the manner of the appointment of its members (cf., Eur. Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).        The Commission notes that the judges who dealt with the applicant's case had been appointed, like all other judges in Turkey, by the Supreme Council of Judges and Prosecutors. However this is not sufficient to create any legitimate doubt as to the independence of the courts. The applicant adduces no other evidence to show that the independence of the courts was questionable.        The Commission therefore considers that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant submits, under Article 1 of Protocol No. 1 (P1-1), that the revision of the local plan deprived her of the right peacefully to enjoy her possessions.        However, the Commission recalls that the rule in the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (No. 21343/93, Dec. 10.10.1994, D.R. 79, p. 44).        In the present case, the Commission notes that her complaint concerns a revision of a settlement plan which designated a part of the applicant's land as a park area and that this revision aimed to serve the general interest. Therefore the interference with the applicant's peaceful enjoyment of her possessions served a legitimate aim under Article 1 of Protocol No. 1 (P1-1) to the Convention and could not be considered disproportionate to that aim.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant further complains under Article 1 of Protocol 1 (P1-1) to the Convention that she was not compensated for the interference with   peaceful enjoyment of her property.        The Commission recalls that in accordance with Article 26 (Art. 26) of the Convention, "it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law..." (see e.g., No. 15117/89, Dec. 16.1.95, D.R. 80,   p. 5)        In the present case, the applicant did not apply to   national courts for the loss she had suffered as a result of the revision of the local plan.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                         J.-C. GEUS         Secretary                            President     to the Second Chamber               of the Second Chamber