SECOND SECTION
DECISION
Applications nos 22110/07 and 47224/08
Ahmet Hamdi BOZBAĞ and Others against Turkey
and Salih and Nihat YILDIRIM against Turkey
The European Court of Human Rights (Second Section), sitting on 22 November 2016 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 21 May 2007 and 16 September 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 are Turkish nationals. Their names and birth dates, as well as the names of their representatives, appear in the appendix.
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. The applicants were owners of plots of land which were designated as part of the public forest area. Subsequently, the Treasury initiated proceedings before the domestic courts and their title deeds were annulled pursuant to Section 2 (B) of Law no. 6831. No compensation was awarded to the applicants.
5. The details of the applications are set out in the attached table.
B. Relevant domestic law and practice
6. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 12) may be found in Savaşçın and Others v. Turkey ((dec.), no. 15661/07, 7 June 2016).
COMPLAINTS
7. Under Article 1 of Protocol No. 1 to the Convention, the applicants complained that they were deprived of their property without any compensation.
8. Relying on Article 6 § 1 of the Convention the applicants also complained about the length and the fairness of the proceedings.
THE LAW
9. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
A. As to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention
10. The applicants complained that the proceedings in dispute had not been concluded within a reasonable time as required by Article 6 § 1 of the Convention.
11. The applicants further alleged under Article 1 of Protocol No. 1 to the Convention that the annulment of their title deeds without any compensation constituted a disproportionate burden and thus breached their right to peaceful enjoyment of their possessions.
12. 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 annulment of applicants’ title deeds due to the application of Section 2 (B) of Law No. 6831 of 31 August 1956. 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 decisions in the cases of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013) and Savaşçın and Others v. Turkey ((dec.), no. 15661/07, 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 annulment of the applicants’ title deeds because of their land’s classification as part of the public forest area.
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 cases of Turgut and Others and Savaşçın and Others, cited above.
16. In view of the above, the Court concludes that the applicants’ complaints regarding the length of domestic proceedings and the annulment of their title deeds should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Other alleged violations of the Convention
17. The applicants further relied on Article 6 of the Convention and complained about the fairness of the proceedings. In the light of all the material in its possession and in so far as the matters complained of are 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,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 December 2016.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
appendix
Application no. and case name
Introduction date
The Applicant’s
Name, Date of Birth, and
Place of Residence
Represented by
Details of the land in dispute
Date and no. of the first instance court decision that annulled the title deed to the land
Date and no. of the Court of Cassation’s final decision and notification date
22110/10
Bozbağ
21/05/2007
Ahmet Hamdi Bozbağ,
09/05/1918, İstanbul
Nevin Bozbağ,
08/02/1930, İstanbul
Nazan Bozbağ,
21/09/1948, İstanbul
Fatma Canan Bozbağ,
20/04/1952, İstanbul
Fatma Handan Bozbağ,
25/07/1956, İstanbul
Selçuk Soybay,
İstanbul
İstanbul, Sarıyer, Uskumru,
Plot No. 2,
Parcel No. 85
Sarıyer Civil Court of First Instance,
20/10/2003
E: 2002/826
K: 2003/958
29/12/2006
E:2006/17425
K:2006/18618
and
09/02/2007
47224/08
Yıldırım
16/09/2008
Salih Yıldırım,
01/11/1943, İstanbul
Nihat Yıldırım,
16/06/1949, İstanbul
Ayşe Banu Koç,
İstanbul
İstanbul, Ümraniye, Aşağı Dudullu,
Plot No. 6,
Parcel No. 943
Ümraniye Civil Court of First Instance,
03/10/2006
E: 2006/370
K: 2006/351
28/04/2008
E:2008/3603
K:2008/6471
and
30/05/2008
Full & Egal Universal Law Academy