SECOND SECTION
DECISION
Application no. 32400/06
Ali Kemal BALOĞLU
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 application lodged on 31 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ali Kemal Baloğlu, is a Turkish national, who was born in 1948 and lives in Kocaeli. He was represented before the Court by Ms Ç. Baloğlu, a lawyer practising in Kocaeli.
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. On 27 October 1999 the Dilovasi Municipality (the municipality) expropriated the applicant’s land. It also paid a certain amount as compensation.
5. On 13 January 2000, the applicant brought a civil action before the Gebze Civil Court of First Instance and requested additional compensation.
6. On 17 April 2000 the Gebze Civil Court of First Instance awarded the applicant 11,817 Turkish liras (TRL) (approximately 20,000 euros (EUR) at the time) as additional compensation, plus interest at the statutory rate, running from 23 January 2000.
7. On 17 April 2001 the Court of Cassation upheld the judgment of the first instance court.
8. On 25 June 2001 the applicant applied to the Kocaeli Enforcement Office in order to enforce the court decision.
9. On 15 February 2008 the Municipality paid the outstanding debt.
B. Relevant domestic law
10. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraphs 13-14) 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
11. The applicant complained about the loss he has suffered as a result of the delay on the part of the authorities to pay the compensation awarded by the domestic court. In respect of his complaints, he invoked Article 6 and Article 1 of Protocol No. 1 to the Convention.
THE LAW
12. Relying on Article 6 and Article 1 of Protocol No. 1 to the Convention, the applicant alleged that as a result of the excessive delay in the enforcement proceedings, he has suffered financial loss.
13. 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-enforcement 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 application should be rejected for non-exhaustion of domestic remedies as the applicant should avail himself of the new remedy before 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 decision in the case of Demiroğlu v. Turkey ((dec.), no. 56125/10, 4 June 2013), 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 failure of the authorities to enforce judicial decisions.
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 applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Demiroğlu, cited above.
17. In view of the above, the Court concludes that the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy