SARIASLAN AND OTHERS v. TURKEY
Inadmissible
Elisabeth Palm
The applicants, all farmers, are Turkish citizens who are related to each other and are resident in Adana, Turkey. They are represented by Mr Selim Sarıibrahimoğlu, a practising lawyer in Ankara. The facts of the case, as they have been submitted by the applicants, may be summarised as follows. The applicants maintain that their families had de facto possession (zilyedlik) of an area of land in the Karaömerli Village in Adana for more than half a century. They allege that over the years their ascendants had been leasing the land to various villagers and had successfully claimed and defended their rights over the land. According to the applicants, one of their ancestors in 1936 leased the land to a family in the village (aşiret). For reasons which are unknown, the money which was received in rent for the lease of the land was paid directly to the village administration. The ancestor sued the Karaömerli Village Administration for the return of the money, claiming that the latter had unlawfully retained it. However, their ancestor and the village mayor (Muhtar) reached a friendly settlement (sulh). According to the terms of that settlement, the ancestor agreed that the village mayor could collect and keep the rent due under the lease up until 1941. In return the mayor agreed that, after 1941, “the village people” would respect the ancestor’s property (mülkiyet) rights over the land. On 25 November 1939, this friendly settlement was registered with the Kadirli Magistrates’ Court (Sulh Hukuk Mahkemesi) in the form of a judgment. At various times in the 1940s their ancestors complained to the Ezirli Enforcement Office that some villagers had trespassed on and used the land without their consent. The Ezirli Enforcement Office, with reference to the judgment of the Kadirli Magistrates’ Court of 25 November 1939, upheld the complaint. In 1943 the former mayor of the village was charged with abusing his official powers as a civil servant in connection with the conclusion of the 1939 friendly settlement with one of the applicants’ ancestors. In a judgment dated 8 May 1945 the Kadirli Criminal Court acquitted the former mayor of the charge. In 1946 several villagers requested the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) to rule that the applicants’ ancestors had unlawfully interfered with their use of the land. In its judgment of 4 March 1946 that court held that the consent of the former mayor of the village to the friendly settlement which was registered with the Kadirli Magistrates’ Court on 25 November 1939 did not bind the villagers. The court nevertheless found that the plaintiff villagers’ claims to be in de facto possession (zilyedlik) of the land were manifestly ill-founded. On the other hand, the court also accepted that the villagers had built houses and barns on the land and had cultivated fruit gardens in good-faith and with the knowledge of the applicants’ ancestors. For that reason, it held that the latter had interfered with the plaintiffs’ possessions on the land. It would appear that the applicants’ ancestors did not appeal. In 1950 other villagers resident in the Karaömerli Village challenged the decision of the Kadirli Magistrates’ Court of 25 November 1939 before the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi). However, a friendly settlement (sulh) was reached between the applicants’ ancestors and the plaintiff villagers according to which the former accepted the villagers’ property rights with respect to a certain part of the disputed land. This friendly settlement was registered with the Kadirli Civil Court of General Jurisdiction in the form of a judgment dated 20 March 1950. The applicants’ ancestors appealed on procedural grounds. The Court of Cassation upheld the registration judgment. On 15 December 1952, at the request of the applicants’ ancestor, the disputed areas of land were registered with the land registry (Tapu Kütüğü) of Kadirli. This registration was based on the judgment of the Kadirli Magistrates’ Court of 25 November 1939. In 1953 and twice in 1955 some villagers attempted to use the land without the consent of the applicants’ ancestors. The latter complained to the Office of the Kadirli County Governor under Law No. 5971 which protects de facto possessors of immovable property against third party interferences. The Governor ordered the villagers to leave the land with the exception of that part of the land which they used as meadowland (mera). At some stage, certain villagers together with the Karaömerli Village Administration requested the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) to annul the title deed to the land which had been registered by the applicants’ ancestor with the land registry of Kadirli in December 1952. On 31 May 1956 the court concluded that the mayor was not entitled to enter into a friendly settlement on behalf of the village in the absence of a decision of the Board of Aldermen (İhtiyar Heyeti). The court nevertheless ruled that the plaintiffs failed to provide sufficient evidence to show that the disputed land was meadowland and as such the property of the Village. The plaintiff village and the villagers appealed. The applicants have not provided a copy of the decision of the Court of Cassation. Following an official cadastre measurement (tapulama tesbiti) dated 20 June 1959, the Kadirli Cadastre Administration (Kadastro Müdürlüğü) identified the disputed land as “village heritage” and classified it as meadowland, which was to be registered as the property of the village. On an unknown date the applicants challenged the decision of the Kadirli Cadastre Administration before the Kadirli Cadastre Court. The court held on 4 April 1977 that the applicants had to lodge their complaint with the Objections Commission (İtiraz Komisyonu) of the Title Deeds Directorate (Tapulama Müdürlüğü) and for that reason the file was transferred to the latter authority. On 9 April 1991 the Objections Department of the Kadirli Title Deeds Administration (Tapulama Müdürlüğü) rejected the applicants’ complaints. On 28 June 1993 and 20 September 1993, the applicants challenged the decision of the 9 April 1991 before the Kadirli Cadastre Court. The respondents were the Karaömerli Village (legal entity) represented by its mayor (muhtar) and the Municipality (Belediye Başkanlığı) of Kadirli-Sumbaş District. The applicants requested that the administrative classification be annulled and their former registration as owners in the land registry (tapu kütüğü) be reconfirmed. The State Treasury of Kadirli (Kadirli Maliye Hazinesi) also challenged the decision before the same court, claiming that certain lots which were registered as the property of Kadirli village were in fact the property of the Treasury. In support of their claims, the applicants referred to the events surrounding the land since the 1930s. They argued that their property rights as the undisputed owners of the land had been determined and affirmed by the 1939 court decision and that no other court could alter that decision. The Kadirli Cadastre Court heard all the concerned parties as well as witnesses. The court commissioned the preparation of expert reports on the disputed land and also inspected the site. On 29 December 1994 the Kadirli Cadastre Court concluded that the classification of the land as meadowland by the Cadastre Administration and the registration of the Karaömerli Village as the owner was lawful. The court also ruled that certain parts of the disputed land were the property of the State Treasury of Kadirli. In its reasoning the court held that the judgment of the Kadirli Magistrates’ Court of 25 November 1939 only pertained to a dispute over receivables between two parties (one of the applicants’ ancestors and the village) and was only intended to register the friendly settlement reached. According to the court, the 1939 judgment was neither a determination of ownership of the land nor a legal basis for registering the applicants’ title to it in the land register in 1952. The applicants appealed. They complained that the trial court did not investigate the case sufficiently. They also claimed that the court could not give a judgment which was in contradiction to the judgment of the Kadirli Magistrate’s Court of 25 November 1939. On 20 June 1995 the 17th Chamber of the Court of Cassation for Civil Law Matters upheld the judgment of the Kadirli Cadastre Court. It ruled that the lower court had investigated the case sufficiently and evaluated the evidence in accordance with the law. It concluded that the 1952 registration of the applicants as owners in the land registry was groundless since it was not based on a judgment validating title to the land (tescil ilamı). According to the Chamber, the 1939 judgment of the Kadirli Magistrate Court did not affect the rights of the State Treasury of the Kadirli village since it was not a party to the friendly settlement. It added that the meadowland was public property and bona fide possessors thereof could not acquire property rights with the passage of time. The Chamber furthermore found that in any event the land was never in the undisputed and uninterrupted possession of the applicants for more that twenty years. The Chamber nevertheless stated that it was not the first instance court’s task to determine the true owners of the lots. The trial court should have confined itself to ordering that the classification of the land as meadowland be registered as such in the relevant register. The Chamber corrected the corresponding parts of the trial court’s judgment. The applicants asked for the correction (karar düzeltme) of the Court of Cassation judgment. On 19 October 1995 the 17th Chamber of the Court of Cassation of Civil Law Matters rejected their request.