Güher Ergun and Others., Application No: 2012/13, 2 July 2013 [right to a fair trial within a reasonable time – Article 36 of the Turkish Constitution – Violation]

A) Facts

In the present case, following an action for annulment of land registry and re-registration before the competent court, a decision of non-jurisdiction was declared as a result of cadastral works being carried out as regards to the relevant real property and the case was referred to the land registration court. As of the date of the individual application, the proceedings were still pending. The applicants claim that their right to a fair trial guaranteed under Article 36 of the Turkish Constitution is violated due to the unreasonable length of proceedings as regards to the inherited property.

B) Judgment and Reasoning of the Court

The Constitutional Court found the application admissible on the ground that the objection of non-exhaustion of all possible remedies cannot be raised for the applications regarding the “trial within a reasonable time” as regards to a pending proceeding and that the exhaustion requirement would not eliminate the current outcome resulted from the unreasonable length of the proceedings. In considering whether the length of the proceedings is reasonable or not, the Court pointed out that the principles and rights incorporated into the scope of the right to a fair trial by the jurisprudence of the European Court of Human Rights (ECtHR) are also included into Article 36 of the Turkish Constitution. Moreover, as a requirement of a constitutional integrity, Article 141 of the Constitution, which provides that it is the duty of judiciary to conclude trials as quickly as possible and at minimum cost, should also be taken into account. Accordingly, the criteria set for the assessment of reasonable time are as follows (§ 41):

a) The complexity of the case,

b) The instances of the trial,

c) The attitude of the parties throughout the proceedings,

d) The attitude of the relevant authorities throughout the proceedings,

e) The quality of the interests of the applicant in the speedy conclusion of the case.

The Court stated that, as a rule, the length of the proceedings shall be calculated from the commencement of the action to the conclusion of the proceedings, including the execution stage; while for the actions still pending on the date of 23 September 2012, the period between the commencement and the resolution of the dispute, or in the case of pending trial, the judgment date of the Constitutional Court shall be taken into account. In the light of these considerations, it has been concluded on the concrete case that due to unnecessarily long periods between hearings, granting to the plaintiffs extra time to eliminate their deficiencies in violation of the procedural rules, nonfulfillment of the repeated interim decisions towards investigation, there has been an unreasonable delay in an eleven-years long proceedings and that the right to a fair trial within a reasonable time guaranteed under Article 36 of the Constitution has been violated. The Court has awarded non-pecuniary damages and ordered the conclusion of the proceedings as immediate as possible, and a copy of the judgment to be sent to the relevant first instance court.

C) Significance of the Judgment

The Güher Ergun and Others judgement has been repeatedly cited in the other Constitutional Court cases related with the right to a fair trial within reasonable time. The criteria set forth in this judgement for the assessment of reasonable length have been followed in the other relevant cases.