SECOND SECTION
DECISION
Applications nos. 15252/08 and 37864/08
Ali ARSLAN against Turkey
and Ahmet BAY against Turkey
The European Court of Human Rights (Second Section), sitting on 28 February 2017 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 18 March 2008 and 25 July 2008 respectively,
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 Mr Ali Arslan and Mr Ahmet Bay are Turkish nationals, who were born in 1937 and 1974 respectively. The first applicant lives in Istanbul and he was represented before the Court by Mr S.D. Doğan, a lawyer practising in İskenderun. The second applicant lives in Bursa and he was represented before the Court by Mr C. Tınarlıoğlu, a lawyer practising in Kocaeli.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the cases
3. The facts of the cases, as submitted by the parties, may be summarised as follows.
4. The applicants’ respective plots of land were expropriated by the administration. Subsequently, the applicants initiated proceedings for additional compensation before domestic courts. The domestic courts established the amount of additional compensation and these decisions were upheld by the Court of Cassation.
5. The applicants initiated enforcement proceedings. However, according to the information in the case files, at the time when the applications were lodged, the administration had still not paid the outstanding debts.
6. The details of the applications may be found in the attached table.
B. Relevant domestic law and practice
7. A description of the domestic law and practise with respect to the Compensation Commission mentioned below (paragraphs 12-13) may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013); Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013); and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014).
COMPLAINTS
8. Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the financial loss they had suffered as a result of the late payment of the additional expropriation amounts.
9. In application no. 37864/08, the applicant further complained under Article 13 of the Convention about the lack of any effective remedy to compel the administration to execute the domestic court’s decision.
THE LAW
10. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
A. Complaint regarding the alleged financial loss suffered by the applicants
11. Invoking Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained that the excessive delay in the payment of the additional compensation awards, coupled with the low interest rates, had caused them substantial financial loss.
12. The Government noted that pursuant to Law no. 6384 of 9 January 2013 a new Compensation Commission had been established 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.
13. 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 decision in the case of Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), the Court declared an application 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 the depreciation of awards in expropriation cases.
14. 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.
15. 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 case of Yıldız and Yanak, cited above.
16. In view of the above, the Court concludes that this part of the applications should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. As to Article 13 of the Convention
17. In application no. 37864/08, the applicant complained under Article 13 of the Convention that there was no effective remedy under Turkish law to compel the administration to honour its debt deriving from a court judgment.
18. The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicant within the meaning of Article 13 of the Convention to complain about the non-execution of domestic court decisions for the purposes of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention relating to all applications pending before the Court submitted before 23 March 2013 (see Turgut and Others v. Turkey, cited above, §§ 59-60).
19. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 23 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
APPENDIX
No.
Application No.
Lodged on
Date and number of the Court of Cassation’s decision
Amount of additional compensation awarded and the date of interest
1
15252/08
18 March 2008
17/09/2007
E: 2007/6514
K: 2007/7355
17,425 Turkish liras (TRY)
(approximately 9800 euros (EUR) at the time)
10 May 2004
2
37864/08
25 July 2008
19/06/2006
E: 2006/4737
K: 2006/7493
TRY 25,099
(approximately EUR 15,300 at the time)
25 September 2004
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