Demolition of a house despite the existence of a decision of interim measures which ordered a suspension of the demolition! Violation of the due process
JUDGMENT
Mehmet Taner Şentürk v. Turkey 20.09.2022 (app. no. 51470/15)
SUMMARY
The appellant had erected an arbitrary building on public property. A demolition order was issued. With a decision on interim measures, the execution of the decision was ordered to be suspended, but the competent bodies of the municipality proceeded with the demolition of the applicant’s house. He sued for violation of due process and right to property.
The ECtHR pointed out that the Convention applies not only to final judicial decisions on the merits, but also to decisions on interim measures related to the suspension of execution. It considered that the violation of the interim measures decision affected the legal certainty that citizens should enjoy and therefore found that a fair trial was violated.
On the contrary, it found that with regard to the violation of the right to property, the applicant had not brought an action for damages against the defendant state, therefore it rejected the complaint as inadmissible.
The ECtHR awarded an amount of 6,000 euros for moral damage.
PROVISIONS
Article 1 of the First Additional Protocol
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Mehmet Taner Şentürk, is a Turkish national who was born in 1950 and lives in
Ankara.
The case concerns the demolition by the authorities of a makeshift house, built illegally by the
applicant on public land which had been earmarked in the urban development plan for the
construction of a school.
Relying on Article 6 § 1 (right to a fair hearing), the applicant alleges that the authorities demolished
his house in spite of the fact that the Ankara Administrative Court had ordered a stay of execution of
the demolition order. Relying on Article 1 of Protocol No. 1 (protection of property), he also
maintains that he has suffered a breach of the right to peaceful enjoyment of his possessions.
THE DECISION OF THE COURT…
Article 6§1
The Court observed that Article 28 § 1 of Law 2577 applies not only to final judicial decisions on the merits, but also to those related to the suspension of execution. In other words, it is not disputed that the two judgments issued on 13 October and 22 December 2004 by the Ankara Administrative Court were binding and enforceable.
However, when the Administrative Court ordered the suspension of the execution of the administrative demolition decision, the administration demolished the applicant’s house.
The Court considered that such a situation is neither compatible with Turkish law nor with the general principles of Article 6 of the ECHR and that it clearly violates the rule of law, based on the Law on the Supremacy and Security of Legal Relations.
The Court therefore concluded that by acting in this way, the State had disregarded the applicant’s right to a fair trial and had thus been deprived of the protection deriving from Article 6 § 1 of the Convention.
The ECtHR found a violation of the fair trial (Article 6 § 1 of the ECHR).
Article 1 of the First Additional Protocol
The applicant alleged that the circumstances of the case violated Article 1 of the First Additional Protocol to the Convention.
The Government raised several objections to admissibility, one of which is based on the exhaustion of domestic remedies rule. He argued that the applicant should have brought an action for damages before the administrative courts within 60 days of the demolition of his house.
First, the Court held that it was not necessary, in the circumstances of the present case, to decide whether the applicant was the holder of “property” within the meaning of Article 1 of the First Additional Protocol to the Convention, since the complaint based on the provision this is in any case unacceptable due to non-exhaustion of internal remedies.
According to the ECtHR in accordance with Article 35 § 1 of the Convention, an appeal may be lodged only after domestic remedies have been exhausted. States do not need to be held accountable for their actions before an international organization before they have had the opportunity to remedy the situation in their domestic legal order. Persons wishing to avail themselves of the Court’s supervisory jurisdiction over complaints against a State are obliged to first use the remedies available in the latter’s legal system. The obligation to exhaust domestic remedies requires applicants to make regular use of available and adequate remedies that will enable them to remedy the violations they claim. These remedies must exist with a sufficient degree of certainty, both in practice and in theory, otherwise they lack the desired effectiveness and accessibility.
In the present case, the Court indeed noted that the applicant merely sought the annulment of the demolition decision before the administrative courts, but did not file an action for damages against the administration in accordance with the procedural rules provided by law. Indeed, as the Government pointed out, the person concerned had to bring such an action before the administrative courts through a separate procedure. However, he sought damages in an arguably procedurally inadmissible manner through additional claims submitted in the proceedings, the sole object of which was the application for annulment.
Consequently, since the applicant did not comply with the procedural rules of domestic law and, therefore, did not bring a legal and substantive claim for damages before the competent courts, the ECtHR considered that he did not exhaust domestic remedies within the meaning of Art. 35 § 1 of the Convention.
It held that this part of the appeal must be dismissed pursuant to Article 35 § 4 of the ECHR.
Just Satisfaction (Article 41): The ECtHR awarded 6,000 euros for moral damage. No request was made as to costs and expenses (edited by echrcaselaw.com).
