SECOND SECTION
DECISION
Application no. 9944/06
Kemal ALEMDAR and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 7 June 2016 as a Chamber composed of:
Julia Laffranque, President,
Işıl Karakaş,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 13 February 2006,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Kemal Alemdar, Mr Şaban Alemdar, Ms Hafize Alemdar, Mr Nihat Alemdar, Mr Cihat Alemdar, Ms Kâniye Alemdar, Mr Cemal Alemdar, Ms Rabia Kahraman (Alemdar), Ms Saliha Gezgin (Alemdar), Ms Hatice Şirin (Alemdar), Ms Melahat Tıknaz, Mr Şakir Tıknaz, Mr Bahattin Tıknaz, Mr Fehmi Tıknaz, Mr Murat Tıknaz, Ms Aysel Örek (Tıknaz), Ms Samiye Özdemir and Ms Saniye Keskin Alemdar, are eighteen Turkish nationals. They were born in 1954, 1953, 1927, 1954, 1959, 1959, 1956, 1943, 1940, 1935, 1946, 1947, 1961, 1930, 1954, 1956, 1964 and 1959 respectively. They were represented before the Court by Ms Gülseren Çanga, a lawyer practising in Sakarya.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In 1983, Mahmut Alemdar and İsmail Alemdar, the applicants’ predecessors, purchased a plot of land in Sapanca, in the Uzunkum District of Sakarya, which had been registered in the land register as plot no. 9, parcel no. 317.
4. In 1993, the forest administration conducted a cadastral survey. On 9 April 1993, as a consequence of the survey, an annotation was made in the land register indicating that the applicants’ land could not be sold as it was classified as part of the public forest.
5. On 25 April 2001 the applicants instituted proceedings before the Sapanca Civil Court of First Instance seeking the annulment of the outcome of the cadastral survey.
6. On 26 September 2002 the Sapanca Civil Court of First Instance dismissed the applicants’ case, holding that the cadastral survey was in conformity with the law. An appeal and a request for rectification lodged by the applicants were subsequently dismissed by the Court of Cassation and the decision became final on 15 July 2005. The final decision was notified to the applicants on 17 August 2005.
B. Relevant domestic law and practice
1. Designation of land as public forest area
7. Under Article 169 of the Turkish Constitution of 1982, ownership of public forests may not be transferred to others; public forests will be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may the forests be subject to any easement, unless it is considered to be in the public interest.
8. Under section 7 of Law no. 6831 of 31 August 1956, the cadastral commissions decide whether an area will be categorized as a public forest or a private forest. The same law governs the way in which the cadastral commissions operate (sections 7 to 12).
9. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-67, 8 July 2008) and Köktepe v. Turkey (no. 35785/03, §§ 36-65, 22 July 2008).
2. Compensation Commission established by Law no. 6384 of 19 January 2013 and the decree of 16 March 2014
10. The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purpose. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
11. The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).
3. Decree of 9 March 2016
12. The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.
13. The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows:
Article 4
“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;
b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area;
c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;
d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;
e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”
COMPLAINT
14. The applicants complained that although they had valid title deeds, they could not use or dispose of their property. They relied on Article 1 of Protocol No. 1 to the Convention.
THE LAW
15. The applicants maintained that the designation of their land as part of the public forest and the annotation made in the land register constituted a disproportionate individual burden and thus breached their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention.
16. Article 1 of Protocol No. 1 to the Convention reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
17. The Court has already examined a similar application and found a violation of the above-mentioned provision because a fair balance had not been struck between the demands of the general interest of the community and the requirement to protect individual rights (see Köktepe v. Turkey, no. 35785/03, §§ 81-93, 22 July 2008).
18. The Court reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus exempting States from answering before the European Court for their acts. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Aydemir and Others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010).
19. The Court observes that following the pilot judgment procedure applied in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), on 9 January 2013 the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non‑enforcement or delayed enforcement of judicial decisions. (see Turgut and Others v. Turkey (dec.), no. 4860/09, §§ 19-26 and 47-60, 26 March 2013).
20. The competence of the Compensation Commission was subsequently extended by the decrees of 16 March 2014 and 9 March 2016.
21. The Court has declared inadmissible for non-exhaustion of domestic remedies the categories of repetitive applications covered by the Decree of 16 March 2014 (see Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9‑17, 27 May 2014 concerning expropriation-related issues, and Bozkurt v. Turkey (dec.), no. 38674/07, §§ 12-21, 10 March 2015 concerning the restrictions on detainees’ use of non-official languages).
22. The decree of 9 March 2016 has further extended the competence ratione materiae of the Compensation Commission, which now has the competence to examine complaints concerning alleged breaches of the right to peaceful enjoyment of possessions on account of the fact that land has been classified in cadastral surveys as part of the public forest (see paragraphs 12 and 13 above).
23. The Compensation Commission is therefore empowered to award compensation to such applicants, in line with the Court’s practice. The compensation awarded by the Compensation Commission will be paid by the Ministry of Justice within three months of the decision becoming final and will be exempt from any tax or charges. An appeal can be lodged against the Compensation Commission’s decision with the Regional Administrative Court, which should decide on the case within three months. The applicant may also lodge an individual application with the Constitutional Court against the decision of the Regional Administrative Court (see Ahmet Erol v. Turkey (dec.), no. 73290/13, 6 May 2014).
24. The Court notes that should the compensation granted at domestic level be insufficient in comparison with the amounts awarded by the Court in similar cases, it would be open to the applicants to claim that they were still a “victim” within the meaning of Article 34 of the Convention and to lodge a fresh application with the Court.
25. In the light of the above considerations, the Court concludes that the applicants should seek redress for their Convention complaint by using the new remedy under Law no. 6384.
26. It follows that the application should be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 30 June 2016.
Stanley NaismithJulia Laffranque
RegistrarPresident
Full & Egal Universal Law Academy