SECOND SECTION
DECISION
Application no. 12256/07
İsmet CANSIZOĞLU and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 5 March 2007,
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 and live in Sinop. Their names and birth dates appear in the appendix.
2. The applicants were represented by Mr K. V. Gül, a lawyer practising in Samsun. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants’ predecessors had a plot of land in Gökdoğan Village, in the Durağan District of Sinop, which had been registered in the land register as plot no. 1, block no. 6, and parcel no. 1197.
5. In 1987, the impugned plot of land was flooded with water due to the construction of the Altınkaya dam.
6. On 16 September 2003 the applicants brought an action before the Durağan Civil Court of First Instance against the General Directorate of National Water Board (Devlet Su İşleri Genel Müdürlüğü, hereinafter referred to as “the Board”) and sought compensation for de facto expropriation of their land.
7. On 29 March 2005 the Durağan Civil Court of First Instance found in line with the applicants and awarded them 29,325.80 Turkish liras (TRY), representing the market value of the disputed land, plus interest at the statutory rate running from 16 September 2003. The applicants did not appeal against that judgment.
8. On 14 April 2006 the Board lodged an appeal before the Court of Cassation alleging that the compensation amount awarded by the first‑instance court had been much higher than the original value of the property.
9. On 15 December 2006 the Court of Cassation rejected the Board’s appeal and upheld the first-instance court’s judgment.
COMPLAINTS
10. Invoking Article 1 of Protocol No. 1 to the Convention the applicants complained about the insufficient amount of compensation awarded to them for their de facto expropriated plot of land and the rate of default interest applied to that amount.
11. The applicants also complained under the same article that the first‑instance court had not awarded them any compensation for the loss resulting from their inability to use the flooded land since 1987.
12. Finally, the applicants alleged a breach of Article 1 of Protocol No. 1 to the Convention given that they had not been awarded any non-pecuniary damage by the national courts for deprivation of property.
THE LAW
13. The applicants complained that their right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention had been breached since the compensation amount awarded by the domestic courts had not covered all their loss resulting from de facto expropriation of their land nor had it compensated them for non-pecuniary damage.
14. The Government argued that the applicants had failed to exhaust domestic remedies in that following the judgment of the first-instance court they had not lodged an appeal with the Court of Cassation. They therefore invited the Court to declare the application inadmissible for failure to exhaust domestic remedies.
15. The Court observes that indeed the applicants did not file an appeal against the judgment of the Durağan Civil Court of First Instance. They have accordingly failed to raise their Convention complaints before the Court of Cassation, which had the authority to overturn the judgment if it considered that there was a factual or legal misinterpretation.
16. In the light of the foregoing the Court follows that the application must 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 18 January 2018.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
APPENDIX
List of the applicantsİsmet Cansızoğlu, who was born in 1947.Ahmet Cansızoğlu, who was born in 1943.Emine Cansızoğlu, who was born in 1949.Hikmet Cansızoğlu, who was born in 1948.Mehmet Cansızoğlu, who was born in 1970.Sait Cansızoğlu, who was born in 1919.Ünzüle Cansızoğlu, who was born in 1958.Arife Özen, who was born in 1939.Dursun Özen, who was born in 1934.Hasan Özen, who was born in 1964.Mehmet Özen, who was born in 1973.Osman Özen, who was born in 1932.
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