Events
In the lawsuit filed on 14/12/2016, the applicant requested the registration of the immovable property, which was left as an unidentified road during cadastral surveys, in his name according to the old land registry. During the proceedings, M.B. filed a petition of primary intervention and requested the registration of the immovable property in his name. The court decided to accept the lawsuit filed by the applicant, to cancel the title deed and to register the immovable property in the name of the applicant, and to dismiss the lawsuit filed by the main intervener. Upon the defendants’ request for appeal, the judgement was annulled and the file was sent back to the court. The court, which resumed the trial, ruled on 1/11/2022 to accept the lawsuit, to cancel the title deed and to register and register the immovable in the name of the plaintiff, and to deem the lawsuit filed by the main intervener as not filed. The notification of the decision is in progress.
Allegations
The applicant claimed that his right to be tried within a reasonable time was violated due to the long duration of the cancellation and registration proceedings.
Assessment of the Court
Various measures have been taken by both international organisations and legislative, executive and judicial bodies in order to ensure that trials are completed within a reasonable time, which is one of the fundamental guarantees of the right to a fair trial guaranteed by the European Convention on Human Rights and the Constitution. In this context, the European Court of Human Rights (ECtHR), in its Ümmühan Kaplan v. Turkey judgement, stated that there was a structural problem in this regard and that there was no effective remedy and decided to implement the pilot judgement procedure. Upon this decision, Law No. 6384 authorised the Ministry of Justice Compensation Commission (Compensation Commission) to examine the applications made to the ECtHR with the claim of violation of the right to be tried within a reasonable time. In addition, within the scope of the aforementioned measures, the provisional Article 2 of the Law No. 6384 regulates ‘application to the Commission regarding certain individual applications pending before the Constitutional Court’. With the aforementioned provision, it is regulated that the individual applications pending before the Constitutional Court as of 31/7/2018, when the provisional Article 2 entered into force, can be examined by the Compensation Commission upon the application to be made within three months from the notification of the inadmissibility decision given due to non-exhaustion of remedies.
The Constitutional Court emphasised that -despite the amendments made- there is a structural problem regarding the right to be tried within a reasonable time and stated that in order to eliminate this structural problem, an effective remedy should be established before the individual application in accordance with Article 40 of the Constitution in order to compensate the damages arising from the violation of the right to be tried within a reasonable time (Nevriye Kuruç [GK], B. No: 2021/58970, 5/7/2022). The Constitutional Court sent the judgement to the Grand National Assembly of Turkey for the solution of this constitutional problem regarding the right to be tried within a reasonable time and fulfilled its constitutional obligation in this context. Moreover, in the said judgement, it was decided to apply the pilot judgement procedure in order to resolve the structural problem.
After the publication of theNevriye Kuruç decision, provisional Article 2 of Law No. 6384 was amended by Article 40 of Law No. 7445. With this amendment, it is now possible to apply to the Compensation Commission for the applications pending before the Constitutional Court as of 9/3/2023. No mechanism has been introduced for applications filed after 9/3/2023. Therefore, the requirements of the pilot decision of the Constitutional Court on Nevriye Kuruç have not been fully fulfilled, and only the possibility to apply to the Compensation Commission has been introduced for applications pending before the Constitutional Court until a certain date. On the other hand, the amendment did not establish an administrative or judicial mechanism to be applied before the application to the Constitutional Court, and the applications within the scope of the alleged violation of the right to be tried within a reasonable time continued to be made directly to the Constitutional Court.
In the light of this information, it has been assessed that the meaning and importance of the pilot judgement will disappear due to the fact that an administrative or judicial remedy has not been established before the application to the Constitutional Court and the claims of violation of the right to be tried within a reasonable time will continue to be examined by the Constitutional Court at first hand. The fact that the Constitutional Court continues to examine the applications regarding the allegation that the trial was not held within a reasonable time does not have any importance in terms of the protection and development of fundamental rights and freedoms after this stage. It is also clear that these judgements, which consist only of determining the amount of compensation, no longer contribute to the protection and improvement of human rights after more than 55,000 violation judgements.
In conclusion, considering the examination method of the applications alleging violation of the right to be tried within a reasonable time, the number of violation decisions and the principles stated in the pilot judgement, it is obvious that there is no longer any justification for the Constitutional Court to continue to examine the applications alleging violation of the right to be tried within a reasonable time. As required by the pilot judgement, it has been concluded that the said applications can be examined after an effective remedy is established for the applications alleging violation of the right to be tried within a reasonable time.
For the reasons explained above, the Constitutional Court has decided to dismiss the application as there is no justification to continue the examination of the application.