SECOND SECTION
DECISION
Application no. 31572/04
Mestan ATİK
against Turkey
The European Court of Human Rights (Second Section), sitting on 7 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 application lodged on 22 July 2004,
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 applicant, Mr Mestan Atik, is a Turkish national, who was born in 1937 and lives in İzmir. He was represented before the Court by Mr N. Değirmenci, a lawyer practising in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1969 the applicant bought a plot of land in İzmir, on which he built a house in the same year and started using it as his residence.
5. 20 March 1985 the applicant’s plot of land was registered in the land registry. The house was also indicated in the title deed.
6. On 30 October 1986 the applicant requested the Balçova Municipality to issue a building permit for his house according to Law no. 2981.
7. In 1995, a new zoning plan was put into force in the region which included the applicant’s land. According to the new plan, the applicant’s land was described as public utility area and thus designated for use by the municipality. Subsequently the owners, including the applicant, were allotted another plot of land in a different place in lieu of their own land.
8. On 1 November 1996 the applicant’s house was sealed off for not having a building permit. On 20 February 1997 the Balçova municipal executive committee (belediye encümeni) ordered the demolition of the applicant’s house on the same ground.
9. On 18 March 1997 the applicant’s house was demolished.
10. On 28 March 1997 the applicant applied to the administrative authorities for compensation for the demolition of his house. He received no reply.
11. On 16 June 1997 the applicant lodged a case before the İzmir Administrative Court and asked for compensation for the loss he had incurred as a result of the demolition.
12. On 13 May 1999 the İzmir Administrative Court accepted the applicant’s claim by stating that the existence of the applicant’s house was legally determined by the title deed records and that therefore the administration had to pay compensation as it had been at fault. The applicant was accordingly awarded compensation.
13. On 8 November 2000 the Supreme Administrative Court quashed the decision of the İzmir Administrative Court, holding that the description of the applicant’s land as well as the zoning plan at the time of the application for a building permit should be further investigated.
14. On 12 September 2001 the İzmir Administrative Court rejected the case, holding that the applicant’s land was defined as a “light industrial area”, not a residential area in the land development plan which had been in force at the time of the application for a building permit in 1986. It followed that the demolition of the applicant’s house, which did not have a building permit, was lawful, and thus there were no grounds to award compensation.
15. On 29 April 2003 the Supreme Administrative Court upheld the decision of the İzmir Administrative Court.
16. On 27 January 2004 the Supreme Administrative Court rejected the applicant’s rectification request. This decision was served on the applicant on 16 February 2004.
B. Relevant domestic law and practice
17. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 21) may be found in Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013 and Paksoy and Others v. Turkey (dec.), no. 19474/10, 7 June 2016.
COMPLAINTS
18. The applicant complained of a violation of his right to a fair trial under Article 6 of the Convention on account of the length of the domestic proceedings. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that as a result of the demolition of his house, his right to peaceful enjoyment of his possessions had been breached.
19. The applicant further maintained under Articles 13 and 14 of the Convention that as a result of the dismissal of his claims, his right to an effective remedy and his right not to be subjected to discrimination had been breached by the respondent State.
THE LAW
A. Complaints raised under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention
20. The applicant complained that the domestic proceedings in his case were not concluded within a reasonable time as required by Article 6 § 1 of the Convention. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that the demolition of his house without any compensation had constituted a disproportionate interference with his right to property.
21. 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, the delayed execution of judgments and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to examine complaints relating to, among other things, the alleged breaches of the right to peaceful enjoyment of possessions on account of the allocation of the applicants’ land for public use in local land development plans. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.
22. 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 Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013) and Paksoy and Others v. Turkey ((dec.), no. 19474/10, 7 June 2016), 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 the length of proceedings and the allocation of the applicants’ land for public use in local land development plans.
23. 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.
24. However, taking into account the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the cases of Turgut and Others and Paksoy and Others, cited above.
25. In view of the above, the Court concludes that the applicant’s complaints regarding the length of domestic proceedings and the demolition of his house without compensation as a result of the local land development plan should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. As to the remaining complaints
26. The applicant further complained of violations of Articles 13 and 14 of the Convention. In this regard, he alleged that he had no effective remedy before the domestic authorities in respect of compensation for his losses and that the domestic authorities’ interpretation and application of the law in his case constituted discrimination between different groups of land owners.
27. 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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy