CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 5 septembre 2017

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TURKEY   (Application no. 13196/07)                     JUDGMENT         STRASBOURG   5 September 2017       This judgment is final but it may be subject to editorial revision.   In the case of Uncuoğlu v. Turkey The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Nebojša Vučinić, President,   Paul Lemmens,   Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 4 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 13196/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Fatma Nuray Uncuoğlu and Ms Nurcihan Uncuoğlu (“the applicants”), on 16 March 2007. 2.     The applicants were represented by Mr Ç. Özgün, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 5 January 2011 the application was communicated to the Government. 4.     On 27 December 2011 the applicants’ representative informed the Court that one of the applicants, namely Ms Nurcihan Uncuoğlu, had received compensation from the authorities and thus no longer wished to pursue her application. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     Ms Fatma Nuray Uncuoğlu (“the first applicant”) was born in 1945 and lives in Istanbul.   Ms Nurcihan Uncuoğlu (“the second applicant”) was born in 1940 and also lives in Istanbul. 6.     The applicants each owned a share in respective plots of land in the area of Firuzköy, in the district of Avcılar, Istanbul. 7.     On 24 December 1987, a new zoning plan was put into force in the area of Firuzköy, which encompassed the applicants’ plots of land. Under the new plan, the plots of land were designated as “university area”. Subsequently, in 1988, 1989, 1990 and 1991, annotations ( şerhler ) were made in the land registry records indicating that the applicants’ land would be expropriated by Istanbul University (hereinafter “the University”). 8.   On 26 March 1998 the applicants both asked the University to either expropriate the disputed land or to remove the annotations from the land registry records. The University informed the applicants, on 27 April 1998 and 28 April 1998 respectively, that the expropriation proceedings would commence when the necessary funding was provided. 9.     On 20 July 2001 the applicants initiated respective proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for de facto expropriation. 10.     On 12 December 2003, relying on expert reports which had indicated that the applicants’ land had been fenced off by the University, the Küçükçekmece Civil Court of First Instance awarded the first applicant 97,125,000,000 Turkish liras (TRL) and the second applicant 37,837,500,000 TRL by way of compensation for de facto expropriation. In its respective judgments, the first-instance court held in particular that the land at issue had been under the effective control of the University and that access to the land was restricted due to the fences that had been built around the land. 11.     On 22 June 2004 the Fifth Civil Division of the Court of Cassation quashed the judgments of the Küçükçekmece Civil Court of First Instance, holding that the land in question had not been controlled or used effectively by the University. 12.     On 24 September 2004 both applicants requested the rectification of the respective decisions dated 22 June 2004. In their petitions, they drew the attention of the Fifth Civil Division of the Court of Cassation to its previous decisions, dated 28 September 1999 and 31 March 2003, in which it had held that neighbouring plots of land in the same area had been de facto expropriated by the University because the latter had built fences around the land and because of the annotations made in the land registry records. 13.     On 12 April 2005 the Fifth Civil Division of the Court of Cassation rejected the applicants’ requests for rectification of the decisions of 22 June 2004. However, it did not express any reason as to why it had reached a different conclusion from its previous decisions dated 28   September 1999 and 31 March 2003. 14.     On 6 October 2005 the Küçükçekmece Civil Court of First Instance complied with the decisions of the Court of Cassation and dismissed the cases. 15.     On 28 November 2005 both applicants filed an appeal, reiterating their argument concerning the contradictory decisions (see   paragraph   12 above) delivered by the Fifth Civil Division of the Court of Cassation. 16.     On 27 March 2006 and 4 April 2006 respectively, the Fifth Civil Division of the Court of Cassation dismissed the appeals. In its decisions, it gave no reply to the applicants’ arguments regarding the fact that it had given contradictory judgments in respect of similar cases. 17.     The applicants’ requests for the rectification of the decisions were furthermore rejected and the judgments became final on 28   September 2006 and 3 October 2006 respectively. 18.     On an unknown date the University paid compensation to the second applicant for her plot of land. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Law no. 6384 of 19 January 2013 19.     A description of the domestic law and practice with respect to the Compensation Commission established by Law no. 6384 of 19   January 2013 (see paragraph 43 below) may be found in Paksoy and Others v.   Turkey (dec.), no.   19474/10, 7   June 2016. B.     Court of Cassation Act (Law no. 2797 of 4 February 1983) 20.     Under section 15(1) of the Court of Cassation Act (Law no.   2797), the plenary Court of Cassation (civil divisions) has the authority to review civil courts’ rulings confirming their previous judgments, following rulings by the civil divisions of the Court of Cassation quashing those previous judgments. 21.     Section 15(2-c) of the same Act provides that if there are contradictory judgments delivered by the same civil division of the Court of Cassation, the plenary Court of Cassation (civil divisions) shall give a final ruling on the matter, thus unifying the case law. 22.     Section 16(5) of Law no. 2797 stipulates that if judgments given by one (or more than one) of the civil divisions of the Court of Cassation and the plenary Court of Cassation (civil division) contradict each other, then the Grand Plenary Court of Cassation shall give a final ruling harmonizing the conflicting judgments. C.     The decisions of the Fifth Civil Division of the Court of Cassation of 28 September 1999 and 31 March 2003 23.     In its decision of 28 September 1999, numbered E.1999/11719 K.1999/14269, the Fifth Civil Division of the Court of Cassation (hereinafter “the Division”) examined an appeal lodged by an individual who had been the owner of another plot of land located in the same area as the applicants’ land. Under the zoning plan that plot of land had also been designated as an area for the use of Istanbul University. In that case, the Division accepted the fact that the plot of land had de facto been expropriated and that the market value of the land had to be paid to the claimant by the University. In doing so, the Division relied on the allocation of the land for public use under the zoning plan, the annotations made in the land registry records indicating the land’s status, and the fact that fences had been built around the land by the University. 24.     The Division adopted the same approach in its judgment of 31   March 2003, numbered E.2003/4598 K.2004/4599, in respect of another neighbouring plot of land located in the same area. THE LAW I.     WITHDRAWAL OF THE SECOND APPLICANT 25.     The Court notes that by a letter of 27 December 2011, the applicants’ representative informed the Court that the University had paid compensation to the second applicant, namely Ms Nurcihan Uncuoğlu, and that his client accordingly no longer wished to maintain the application. 26.     The Court finds, in accordance with Article 37 §   1 in fine , that there are no special circumstances regarding respect for human rights, as defined in the Convention and its Protocols, which require the continued examination of the complaint. Accordingly, the Court decides to strike out from its list of cases the application lodged by the second applicant. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE DEPARTURE BY THE COURT OF CASSATION FROM ITS PRECEDENTS IN SIMILAR CASES 27.     The first applicant complained of a violation of her right to a fair trial on account of the fact that the Court of Cassation had handed down judgments in her case, which were in conflict with earlier judgments in similar cases. She relied on Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.” A.     Admissibility 28.     The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention as she had not raised her complaint before the domestic courts. 29.     The applicant disagreed with the Government. 30.     The Court reiterates that Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25   March 2014, and the cases cited therein). The Court observes that in the present case, the applicant repeatedly drew the attention of the Fifth Civil Division of the Court of Cassation to its previous contradictory decisions and expressly raised her complaint regarding those contradictory judgments. 31.     The Court therefore concludes that the applicant has complied with the requirement of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. It consequently rejects the Government’s objection in this respect. 32.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 33.     The first applicant complained that the departure by the Court of Cassation from its precedents in very similar cases had undermined legal certainty. According to the first applicant, even though she had persistently drawn the attention of the Fifth Civil Division of the Court of Cassation to its previous decisions, the latter changed its approach on the same legal matter in her case and thus breached her right to a fair trial under Article   6 §   1 of the Convention. 34.     The Government contested the claims. 35.     The Court reiterates at the outset that the existence of conflicting judgments in the case-law of a court of last instance may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Balažoski v.   the former Yugoslav Republic of Macedonia , no. 45117/08, §   30, 25   April 2013; and Emel Boyraz v. Turkey, no. 61960/08, 2   December 2014, §   72). The criteria that guide the Court’s assessment of the conditions in which conflicting judgments are in breach of the fair trial requirement, enshrined in Article 6 § 1 of the Convention, consist in establishing whether profound and long ‑ standing differences exist in the case-law of the domestic courts, whether the domestic law provides for a mechanism for overcoming these inconsistencies, whether that mechanism has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others v.   Bulgaria , no.   23530/02, §§ 49-50, 2 July 2009; Nejdet Şahin and Perihan Şahin v.   Turkey [GC], no. 13279/05, § 53, 20 October 2011; and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §   116, ECHR 2016 (extracts)). 36.     In the present case the Court notes that, in support of her argument under this head, the first applicant cited two decisions rendered by the Fifth Civil Division of the Court of Cassation in 1999 and 2003 which had found in favour of claimants who were owners of neighbouring plots of land located in the same area as the applicants’ land. While it is true that the same division reached a different conclusion in respect of a very similar situation in the applicant’s case in 2004, it cannot be said that there were at that time “profound and long-standing differences” in the relevant case-law. Moreover, the Court observes that the core of the applicant’s complaint in the present case lays in a sudden change in the case-law of the Court of Cassation which had arisen in her case and not in a long-standing divergent practice by that court. 37.     Turning to the fact that the Court of Cassation took a decision in the applicant’s case, which was different from the above-mentioned earlier decisions in two similar cases, the Court reiterates that case-law development is not, in itself, contrary to the proper administration of justice (see Nejdet Şahin and Perihan Şahin , cited above, § 58; and Lupeni Greek Catholic Parish and Others , cited above, § 116). However it is in the interests of legal certainty, foreseeability and equality before the law that courts should not depart, without good reason, from precedents laid down in previous cases (see, mutatis mutandis , Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001 ‑ I, and Magyar Helsinki Bizottság v.   Hungary [GC], no. 18030/11, § 150, ECHR 2016). 38.     Moreover, according to the Court’s case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should state the reasons on which they are based ( García Ruiz v.   Spain [GC], no. 30544/96, §   26, ECHR 1999 ‑ I, and the cases cited therein). While Article 6 § 1 obliges courts to give reasons for their rulings, it cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the ruling and must be determined in the light of the specific circumstances of the case ( Ruiz Torija v. Spain , 9 December 1994, §   29, Series A no. 303 ‑ A; Hiro   Balani v. Spain , 9 December 1994, § 27, Series   A no.   303 ‑ B; and García Ruiz , cited above, § 26). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s judgment ( Helle v. Finland , 19 December 1997, §§ 59-60, Reports of Judgments and Decisions 1997 ‑ VIII; Hirvisaari v.   Finland , no.   49684/99, §   30, 27   September 2001; Stepanyan v.   Armenia , no.   45081/04, §   35, 27   October 2009; and Emel Boyraz v.   Turkey , no.   61960/08, § 74, 2 December 2014). 39.     In the present case, during the domestic proceedings, the applicant drew the attention of the Fifth Civil Division of the Court of Cassation to its previous judgments of 1999 and 2003 ruling that the designation of land as a public-use area under a local land development plan amounted to de facto expropriation. However, neither during the appeal proceedings nor in the rectification proceedings did the Fifth Civil Division of the Court of Cassation consider the applicant’s submissions, while concluding that the applicant did not have a right to compensation on the ground that her land was not controlled or in effect used by the University. In the Court’s opinion, while earlier judgments delivered by the Fifth Civil Division were in conflict with its approach in the present case, the applicant’s submissions regarding the said judgments required an adequate and express response. In the absence of such a response, it is impossible to ascertain whether the Fifth Civil Division simply neglected to deal with the applicant’s submission or whether it intended to dismiss her argument and, if that was its intention, what its reasons were for so deciding (see Ruiz Torija , cited above, §   30; Hiro   Balani , cited above, § 28; and Emel Boyraz , cited above, §   75). 40.     The Court further notes that it has already examined an identical problem in a similar case, in which it concluded that there had been a violation of Article 6 § 1 of the Convention in that the domestic courts had failed to fulfil their duty to provide a response to the applicant’s submissions (see Emel   Boyraz , cited above, § 75). It sees no reason to reach a different conclusion in the present case. 41.     There has accordingly been a violation of Article 6 § 1 of the Convention on account of the absence of sufficient reasons in the Fifth Civil Division of the Court of Cassation’s decisions. III.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 42.     The first applicant further complained that the restriction imposed on her land as a result of the local land development plan had constituted a disproportionate burden and violated her right to property under Article 1 of Protocol No.   1 to the Convention. 43.     The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established in Turkey to deal with applications concerning length of proceedings, the delayed execution of judgments and the non-execution of judgments. They further noted that the jurisdiction of the Compensation Commission had subsequently been enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to encompass the examination of complaints relating to, among other things, alleged breaches of the right to peaceful enjoyment of possessions on account of the allocation of privately-owned land for public use under local land development plans. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as she had not made any application to the Compensation Commission. 44.     The Court observes that, as pointed out by the Government, a new domestic remedy was established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v.   Turkey (no.   24240/07, 20   March 2012). Subsequently, in its judgment in the case of Paksoy and Others v.   Turkey ((dec.), no.   19474/10, 7   June 2016), the Court declared the application inadmissible on the ground that the applicants had failed to exhaust domestic remedies (that is to say the new remedy). In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress in respect of complaints concerning the allocation of applicants’ land for public use in local land development plans. 45.     The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications (of the type established under the Court’s Ümmühan Kaplan judgment) which had already been communicated to the Government. 46.     However, taking into account the Government’s preliminary objection regarding the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Paksoy and Others , cited above. 47.     In view of the above, the Court concludes that the applicant’s complaint concerning the restrictions imposed on her land by the local land development plan should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies. IV.     OTHER ALLEGED VIOLATION OF THE CONVENTION 48.     The first applicant further complained of a violation of Article 6 §   1 of the Convention on account of the fact that she had been ordered to pay the fees of the University’s lawyer in respect of the domestic proceedings . 49.     In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3   (a) and 4 of the Convention. V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 50.     The applicant claimed 104,938 Turkish liras (TRY [1] – approximately 25,000 euros (EUR)), reflecting the market value of her land, for pecuniary damage in respect of her complaint under Article 1 of Protocol No.   1 to the Convention. She did not submit any claim relating to her complaint in respect of her right to a fair trial under Article 6 § 1 of the Convention. Neither did she submit any claim in respect of non-pecuniary damage. 51.     The applicant further claimed EUR 20,000 for costs and legal fees but did not submit an invoice or any other document in support of that claim. 52.     The Government contested the amounts claimed by the applicant. 53.     The Court notes that the applicant did not submit any just satisfaction claim in respect of her rights under Article 6 § 1 of the Convention. Accordingly, in the absence of any claim by the applicant, the Court considers that there is no need to make any award under this head. 54.     As regards costs and expenses the Court reiterates that according to Rule 60 § 2 of the Rules of Court, any claim for just satisfaction must be itemised and submitted together with the relevant supporting documents. In the instant case the applicant did not submit any document to substantiate her claim for costs and expenses. In view of the applicant’s failure to comply with the aforesaid requirement, the Court makes no award for costs and expenses. FOR THESE REASONS THE COURT, UNANIMOUSLY, 1.     Decides to strike the application, in so far as it was brought by Ms   Nurcihan Uncuoğlu, out of its list of cases;   2.     Declares the complaint brought by Ms Fatma Nuray Uncuoğlu concerning the departure by the Court of Cassation from its precedents in similar cases admissible and the remainder of the application inadmissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     Dismisses the first applicant’s claims for just satisfaction. Done in English, and notified in writing on 5 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Hasan Bakırcı   Nebojša Vučinić Deputy Registrar   President [1]     On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY   1   = TRL   1,000,000.