CASE OF UNCUOĞLU v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström
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.