The plot of land was irrevocably considered as land that fell outside the forest’s boundaries. A later decision characterized it as forest. The overturning of res judicata is a breach of legal certainty.
JUDGMENT
Şamat v. Turkey 21.01.2020 (no. 29115/07)
SUMMARY
Res judicata and legal certainty.
The applicants, already deceased, in 1989 and 1994 purchased a plot of land near a forest area in Istanbul., which had already been declared non-forest by a 1979 decision. Following a recent report by the cadastral office in the area, the public again appealed to the Courts, which ruled in favor of designating the same areas as forests, rejecting the applicants’ claim of res judicata on the ground that they had missed the ten-year deadline of the 1985 land survey.
The Court points out that in order to violate the principle of res judicata that ensures legal certainty, there must be serious reasons for the decision to be infringed by a fundamental defect, in particular an error of jurisdiction, serious breaches of judicial procedure or abuse of power.
In the present case, the Court found that the annulment of an irrevocable judgment of 1979 which regarded a land as non-forestry was not justified by a pressing social need and therefore held unanimously that a breach of jurisdiction was contrary to legal certainty, which constituted legal certainty and more specifically the fair trial. Violation of Article 6 § 1 of the Convention.
The claim for pecuniary compensation for the deprivation of the applicants’ property was declared inadmissible for failure to exhaust their domestic remedies as the proceedings are still pending.
PROVISIONS
Article 6§1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Niyazi Şamat, now deceased, and Nuri Şamat, are Turkish nationals who were born in
1943 and 1946, respectively, and live(d) in Istanbul.
The case concerned a dispute over forest boundaries.
Between 1982 and 1994 the applicants bought shares in a plot of land in Kemerburgaz, Istanbul.
The land had previously been the subject of proceedings against the former owner by the forest
administration and the Treasury seeking to have his title deed annulled because the land was
situated inside the Belgrade Forest, which had been declared a conservation area. The Land Registry
Court dismissed the case, finding that the plot fell outside the forest’s boundaries. The decision
became final in 1979.
However, in 2003 the forest administration brought proceedings against the applicants to annul
their title deed and to have the land registered in the name of the Treasury, based on a cadastral
evaluation drawn up in 1985 finding that the land was inside the forest’s boundaries.
The courts ultimately, in 2007, ruled in favour of the forest administration because the applicants
had missed the 10-year time-limit to contest the conclusions of the 1985 cadastral evaluation. They
rejected the applicants’ argument that the status of the land had been conclusively determined in
the decision of 1979 and should have the effect of res judicata.
Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the
applicants alleged in particular that the proceedings brought against them had been in breach of the
principle of legal certainty.
THE DECISION OF THE COURT…
As the Court has stated in previous cases, the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of rule of law and legal certainty, encompasses the requirement that where the courts have finally determined an issue, their ruling should not be called into question
That principle does not allow a party to seek the reopening of proceedings merely for the purpose of a rehearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character
Turning to the present case, the Court observes that the question of whether the plot of land in question was located within the boundaries of the Belgrade Forest pursuant to the boundary-marking exercise of 1939 had been examined on the merits in the adversarial proceedings before the Eyüp Land Registry Court which had settled the issue in a final manner in its decision of 13 March 1979
The Court therefore needs to determine first whether the judgment of 1979 could be considered res judicata in respect of the subsequent proceedings before the Eyüp Civil Court. If so, it needs to ascertain whether the Court of Cassation’s approach in limiting the force of res judicata vis-à-vis prescription periods is compatible with the guarantees of Article 6 of the Convention, in particular with the principles of the rule of law and legal certainty inherent in that provision. In determining that question the Court has to take into account whether the Court of Cassation’s approach in the present case was used to correct fundamental defects or a miscarriage of justice.
. In respect of the first question, the Court notes that there does not appear to be a dispute between the parties that the domestic courts examined the same matter in the two sets of proceedings at issue, namely whether the plot of land in question remained within or outside the boundaries of the Belgrade Forest in the light of the boundary-marking exercise of 1939.
The Court therefore considers that the same dispute that had been determined in a final manner by the Eyüp Land Registry Court in the judgment of 1979 was re-litigated in the proceedings brought by the forest administration and the Treasury against the applicants in the proceedings before the Eyüp Civil Court. In the light of the foregoing, it follows that the judgment of 1979 was res judicata in respect of the subject-matter of the proceedings before the Eyüp Civil Court.
As regards the next question, namely whether the Court of Cassation’s approach in limiting the force of a res judicata vis-à-vis prescription periods was compatible with the guarantees of Article 6 of the Convention, in particular with the principles of the rule of law and legal certainty inherent in that provision, the Court makes the following observations. It is sufficiently clear that in the present case, unlike Brumărescu, the 1979 final judgment was not quashed. It was rendered devoid of any legal effect, because the applicants were estopped from raising the defence of res judicata in the light of the fact that they had missed the ten-year prescription period to contest the conclusions of the cadastral commission which were announced on 15 June 1988
More importantly, the Court considers that a situation, such as the one in the present case, where the res judicata effects of a final judgment are not allowed to survive beyond a limitation period, which is moreover triggered by an administrative act, is not significantly different from the situation in previous cases where the Court found a violation of Article 6 of the Convention because final judgments were liable to challenge indefinitely at the discretion of State authorities. Both situations infringe the principle of finality of judgments and the individual’s legitimate expectation to protection from repeated litigation of the same matter. In the present case, the Court concludes that the domestic courts re-examined the same matter in the subsequent proceedings, namely whether the property in question could be classified as a forest on the fact that it fell inside the boundaries of the Belgrade Forest. Thus, they provided the forest administration and the Treasury with a “second chance” to have the matter – which had already been decided upon in earlier contentious proceedings – determined in their favour
What remains to be determined is whether in the circumstances of the present case the principle of legal certainty was disturbed in order to correct a “fundamental defect” or a “miscarriage of justice”.
The Government have argued in that connection that the ten-year prescription period was a proportionate limitation of the right of access to a court and its manner of application in cadastral disputes pursued the aim of legal certainty and stability in respect of forest areas.
The Court notes however that findings made by the Eyüp Land Registry Court were disregarded in the subsequent proceedings on the basis merely of a different, and what appears to be erroneous, application by the cadastral commission in 1985 of the forest boundaries established in 1939. That ground was not a fundamental defect within the meaning of the Court’s case-law and could not justify a departure from the principle of legal certainty. The Court also does not find that the proceedings before the Eyüp Land Registry Court had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power . There was, therefore, no pressing social need shown for disregarding the judgment in question.
The Court finds, therefore, that by depriving the applicants of the res judicata effect of the judgment of 1979, the Court of Cassation acted contrary to the principle of legal certainty despite the absence of any justified grounds recognised in the Court’s case-law as a departure from that principle.
It therefore follows that there has been a violation of the principle of res judicata enshrined in Article 6 § 1 of the Convention.
As regards the payment of the current value of the property as compensation for pecuniary damage, the Court notes that in the course of the present application the applicants’ complaint under Article 1 of Protocol No. 1 was declared inadmissible for non-exhaustion of domestic remedies in the light of the new remedy which had been found by the Court to be effective in similar cases. The effectiveness of this remedy has not been called into question by the applicants. It further notes that the applicants have introduced proceedings to recover such compensation and that those proceedings are currently on-going.
