SECOND SECTION
DECISION
Application no 14524/05
Hafize ÇALIŞKAN against Turkey
and 5 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 25 April 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 the various dates indicated in the appended table,
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. In application no. 9180/08, one of the applicants, Mr Şakir Kırıştıoğlu died on 4 July 2013 and on 13 January 2015 his heirs, Ms Melahat Kırıştıoğlu, Mr Huriye Yahyaoğlu and Mr Şükran Yanık indicated their wish to continue the application.
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 all own plots of land. Following local land development plans, their plots of land were designated for public use. Subsequently, complaining about the decrease in the market value of the land and long-term uncertainty about the fate of their plots of land, the applicants initiated proceedings before the domestic courts, seeking compensation and/or annulment of the local land development plans. Their cases were dismissed and as a result they were unable to obtain any redress from the authorities.
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 (see paragraphs 13-14 below) may be found in Paksoy and Others v. Turkey ((dec.), no. 19474/10, 7 June 2016).
COMPLAINTS
7. The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the restrictions imposed on their land, their right to peaceful enjoyment of their possessions had been breached. In this connection, they claimed that the restrictions substantially decreased the market value of their land, caused uncertainty and restricted the use of their property. Furthermore, the applicants pointed out that because of the failure of the authorities to compensate them for damage resulting from the said interference, they had to bear an excessive burden.
8. In applications nos. 14524/05 and 13984/06, relying on Article 6 § 1 of the Convention, the applicants also complained about 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. Locus standi of Mr Şakir Kırıştıoğlu’s heirs
10. In application no. 9180/08, one of the applicants, Mr Şakir Kırıştıoğlu passed away on 4 July 2013 while the case was pending before the Court, and his heirs, Ms Melahat Kırıştıoğlu, Mr Huriye Yahyaoğlu and Mr Şükran Yanık indicated their wish to pursue the application on his behalf (see paragraph 1 above).
11. The Court notes that it has not been disputed that the heirs are entitled to continue the application and that the application of Mr Şakir Kırıştıoğlu concerns a pecuniary right which is in principle transferable to them. In these circumstances, the Court sees no reason not to accede to their request (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005; Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009; and Ilieva and Others v. Bulgaria, no. 17705/05, § 24, 3 February 2015).
B. As to Article 1 of Protocol No. 1 to the Convention
12. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the restriction imposed on their land as a result of the local land development plans constituted a disproportionate burden and thus breached their right to peaceful enjoyment of their possessions.
13. The Government noted that pursuant to Law no. 6384 of 9 January 2013 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 applicants’ inability to use their land as a result of restrictions imposed by the local land development plans. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to 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 Paksoy and Others v. Turkey ((dec.), no. 19474/10, 7 June 2016), the Court declared the 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 restrictions imposed on the applicants’ land because their land was designated for public use by local land development plan.
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 applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Paksoy and Others (cited above).
17. In view of the above, the Court concludes that the applicants’ complaints should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. As to Article 6 § 1 of the Convention
18. In applications nos. 14524/05 and 13984/06, the applicants complained about the fairness of the proceedings under Article 6 § 1 of the Convention. However, 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 Article 6 § 1 of the Convention. 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 18 May 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
APPENDIX
Application no. and case name
Introduction date
The applicant’s name and
date of birth
Name of the representative
Details of the land in dispute and the date on which the restriction was imposed on the land
Date and no. of the first-instance court decision that rejected the applicant’s claim
Date and no. of the final decision
14524/05
Çalışkan
16/04/2005
Hafize Çalışkan
1930
Suat Sert, İzmir
İzmir, Çamdibi,
Çamkule District
Plot No. 16,
Parcel No. 10880
18/02/1991
21/04/2004
İzmir Civil Court,
E. 2003/1495
K. 2004/196
23/09/2004
Court of Cassation
E.2004/8006 K. 2004/8836
13984/06
Koçoğulları
08/04/2006
Oğuzhan Koçoğulları
1960
Ali Yavuz
Koçoğulları 1959
Suat Sert, İzmir
İzmir, Konak,
Güzelyalı District
Plot No. 22L-4C,
Block No. 31464,
Parcel No. 15
30/07/1996
25/11/2004
İzmir Civil Court,
E . 2004/451
K . 2004/635
23/09/2005
Court of Cassation
E.2005/9614
K. 2005/9808
15770/07
Hamat Ertuğrul
16/01/2007
Faika Hamat (Ertuğrul)
1930
Yaşar Demirci,
İstanbul
Istanbul, Avcılar,
Firuzköy District
Plot No. 7,
Parcel No. 2678
07/06/1979
27/04/2005
Küçükçekmece Civil Court,
E. 2004/744
K. 2005/220
04/07/2006
Court of Cassation
E.2006/5067 K.2006/8368
55035/07
Öztürk
05/12/2007
Cemile Öztürk
1924
Haluk Çelikel,
Ordu
Ordu, Şahincili, Akyazı District
Plot No. 4,
Parcel No. 188
1992
30/12/2003,
Ordu Administrative Court,
E. 2003/234
K. 2003/902
15/06/2007
Supreme Administrative Court
E.2006/5419 K.2007/3649
9180/08
Kırıştıoğlu
15/02/2008
Murat Kırıştıoğlu 1952
Hüseyin Çetin
Kırıştıoğlu
1961
Melahat Kırıştıoğlu 1946
Huriye Yahyaoğlu
1955
Şükran Yanık
1977
Adnan Yıldız,
İstanbul
İstanbul, Fatih,
Veledi Karabaş District
Plot No. 356,
Block No. 1398,
Parcel No.19
21/05/2005
30/11/2006
Fatih Civil Court,
E . 2006/147
K . 2006/323
26/11/2007
Court of Cassation
E.2007/12552 K. 2007/13747
58633/09
Altıntaş and Others
26/10/2009
Mükremin Altıntaş
1942
Belgin Taçyıldız
1965
Tülin Salıcı
1960
Betül Solak
1964
Tülay Birtane
1958
Adil Aktay,
Mersin
Mersin, Silifke,
Taşucu District
Parcel No. 5923
1990
11/09/2008
Silifke Civil Court,
E. 2004/340
K. 2008/235
30/04/2009
Court of Cassation
E. 2009/3390K. 2009/6667
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