SECOND SECTION
DECISION
Application no. 11819/05
Kadriye AKTAŞ (KURU) and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 October 2016 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 March 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Kadriye Aktaş Kuru, Mr Abdulkadir Kuru, Ms Dürdane Kuru, Mr Kemal Kuru, Mr Mehmet Ali Kuru, Mr Muammer Kuru, Mr Bekir Kuru, Mr Cemalettin Kuru, Mr Saadettin Kuru, Ms Cumhuriyet Yıldırım, Ms Lütfiye Yıldırım, Ms Aysel Yıldırım, Ms Münevver Yıldırım and Ms Yüksel Yıldırım are fourteen Turkish nationals. They were born in 1947, 1953, 1955, 1962, 1966, 1940, 1927, 1933, 1929, 1937, 1944, 1949, 1950 and 1946 respectively. They were represented before the Court by Mr N. Başoğlu, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 10 July 1954 a cadastral survey was conducted in Yenimahalle, Ankara where a plot of land (parcel no. 1600) partially owned by the applicants was located.
4. On 7 April 1983 the applicants brought an action against the State Treasury before the Ankara Land Registry Court (Tapulama Mahkemesi) objecting to the results of the cadastral survey.
5. In the meantime, the General Directorate of the State Property (Arsa Ofisi Genel Müdürlüğü) decided to expropriate the disputed plot of land. On 15 December 1983, when the proceedings were still pending before the Ankara Land Registry Court, the applicants were officially notified of the expropriation decision by a notice served through the notary public. It was indicated in the notice that the amount of expropriation compensation was fixed at 6,225,000 Turkish liras (TRL)[1], the equivalent of approximately 31,200 euros (EUR) at the time.
6. On 29 December 1983 the applicants brought a civil action before the Ankara Civil Court of First Instance and claimed TRL 26,975,000 (approximately EUR 135,250) in additional expropriation compensation. On 22 March 1984 the Ankara Civil Court of First Instance decided to wait for the outcome of the proceedings before the Ankara Land Registry Court.
7. On 15 November 2000 the Ankara Land Registry Court partially accepted the case and ordered that a part of the disputed land measuring 17,084 square metres be registered in the land registry in the name of the applicants. The Ankara Land Registry Court’s judgment was upheld by the Court of Cassation and became final on 28 August 2001.
8. On 14 October 2004 the Ankara Civil Court of First Instance awarded the applicants TRL 4,271,000 (approximately EUR 3 at the time) as additional compensation, plus interest at the statutory rate. In its decision, the Ankara Civil Court of First Instance stated that the applicants had not made an application to have the initial amount amended (ıslah). The applicant did not appeal against this decision and it became final on 12 January 2005.
B. Relevant domestic law and practice
9. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 13) may be found in Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013; Demiroğlu v. Turkey (dec.), no. 56125/10, 4 June 2013; and Yıldız and Yanak v. Turkey (dec.), no. 44013/07, 27 May 2014.
COMPLAINTS
10. The applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to property had been violated by the respondent state on account of the inadequate amount of the expropriation compensation.
11. Relying on the same provision the applicants further complained about the non-payment of both the initial and the additional expropriation compensation.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention concerning the amount of the expropriation compensation and the non-payment of the additional expropriation compensation
12. The applicants complained under Article 1 of Protocol No. 1 to the Convention that due to the length of domestic proceedings the amount of the expropriation compensation determined by the domestic courts had been considerably less than the market value of their land and the General Directorate of the State Property had failed to discharge the payment of the additional compensation for expropriation of their land.
13. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by a decree adopted on 16 March 2014 to examine complaints relating to, among other things, the alleged loss of value of the amount of the expropriation compensation due to the effects of inflation and the length of the proceedings. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
14. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decisions in the cases of Demiroğlu v. Turkey ((dec.), no. 56125/10, 4 June 2013) and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), the Court declared the applications inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning both the failure of the authorities to enforce judicial decisions and the depreciation of awards in expropriation cases.
15. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.
16. However, taking into account the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the cases of Demiroğlu and Yıldız and Yanak, cited above.
17. In view of the above, the Court concludes that these parts of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Alleged violation of Article 1 of Protocol No. 1 to the Convention concerning the non-payment of the initial expropriation compensation
18. The applicants alleged that their right to property under Article 1 of Protocol No. 1 to the Convention had been violated as the initial expropriation compensation had not been paid to them.
19. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares inadmissible the application.
Done in English and notified in writing on 17 November 2016.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
[1]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000
Full & Egal Universal Law Academy