SECOND SECTION
Application no. 35808/08
Güler AVŞAROĞLU and Others
against Turkey
lodged on 23 July 2008
STATEMENT OF FACTS
THE FACTS
The applicants, Güler Avşaroğlu, Ayşe Avşaroğlu, Ali Avşaroğlu, Hasan Avşaroğlu and Mustafa Avşaroğlu, are Turkish nationals who were born in 1937, 1959, 1957, 1961 and 1955 respectively and live in Istanbul. They are represented before the Court by Mr H.H. Yılmazer, a lawyer practising in Ankara.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1976 several plots of land which were the subject of cadastral proceedings between the applicant’s testator, Ö.A., and the administration, were expropriated. A certain amount of money was blocked in the bank to be paid to Ö.A. on the condition that his ownership was established by the Akçakale Cadastral Court at the end of the proceedings.
Subsequently, Ö.A. brought another set of proceedings in order to increase the expropriation compensation. His case was accepted. Those proceedings ended on 12 April 1978.
On an unspecified date in 2002 the Cadastral Court held that Ö.A. had title to the plots in question.
On 25 June 2003 Ö.A. brought compensation proceedings, claiming that although the court had held that he was the owner, he could not register the land to himself as it had been expropriated in 1976. He also argued that he had not received any compensation for the expropriation.
During the proceedings, Ö.A. passed away and his heirs, the applicants, became parties to the case.
Meanwhile, the value of the litigation was determined at 6,137,244 Turkish liras (TRY) (approximately 3,500,000 euros (EUR) at the time) and the applicants paid TRY 82,861 (approximately EUR 50,000 at the time) in court fees.
On 14 February 2007 the Akçakale Civil Court of General Jurisdiction dismissed the case, holding that it was essentially the same as the one which had become final on 12 April 1978. The Court of Cassation upheld that judgment on 16 July 2007.
Subsequently, the applicants requested rectification of the judgment, arguing that the case was not the same as the one in 1978, as in that case Ö.A.’s ownership had not yet been established by the courts.
On 29 January 2008 the Court of Cassation rejected the request on procedural grounds, indicating that the value of the litigation per applicant was lower than TRY 7,090, which is the minimum value required in order to request the rectification of a judgment under the Code of Civil Procedure.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that their right of access to court was violated in that the Court of Cassation did not acknowledge the real value of the litigation.
Relying upon Article 1 of Protocol No. 1, the applicants also argue that they did not receive any compensation for the expropriation of their property.
QUESTION TO THE PARTIES
Did the Court of Cassation’s miscalculation of the litigation value in its decision dated 29 January 2008 deny the applicants their right of access to court, implicitly guaranteed by Article 6 § 1 of the Convention?
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