SECOND SECTION
DECISION
Application no. 42957/09
Mustafa ÇEKEN
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 March 2017 as a Committee composed of:
Ksenija Turković, President,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 1 August 2009,
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 Mustafa Çeken, is a Turkish national, who was born in 1938 and lives in Diyarbakır. He was represented before the Court by Mrs M. Beştaş and Mr S. Kabadayı, lawyers practising in Diyarbakır.
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 applicant had a house in a historical, religious site in Diyarbakır, which had been registered in the land register on the plot no. 204, parcel no. 2.
5. On 30 December 1991 the Directorate General of Foundations (“the directorate”) expropriated the house and paid 62,915,000 Turkish liras (TRL) as compensation.
6. On 21 January 1992 the applicant brought an action before the Diyarbakır Civil Court of First Instance and asked for additional compensation.
7. On 20 September 1994 Diyarbakır Civil Court of First Instance awarded a sum of TRL 92,000,000 plus interest.
8. On 15 December 1994 the Court of Cassation upheld the first instance court’s decision.
9. On 04 May 2007 upon the request of the directorate, Diyarbakır Civil Court of First Instance decided to transfer the title deed of the property to the directorate and the decision was upheld by the Court of Cassation.
10. On 27 January 2009 the applicant applied to the directorate and requested the payment of the outstanding debt. However, the directorate refused to make the payment alleging that the statutory time limit to execute the domestic court judgment had lapsed. According to the information in the case file, the debt is still not paid.
B. Relevant domestic law
11. A description of the domestic law and practice with respect to the Compensation Commission mentioned below 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
12. The applicant complained under Article 1 of Protocol No. 1 of the Convention about the failure of the national authorities to comply with the domestic court judgment for a long period of time. The applicant further alleged that there was no effective remedy in domestic law by which he could compel the administration to honour its debt.
THE LAW
A. Complaint regarding the non-execution of a domestic court judgment
13. The applicant complained under Article 1 of Protocol No. 1 of the Convention about the non-execution of a domestic court judgment.
14. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.
15. 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 and others 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 non-execution of judgments.
16. 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.
17. Taking into account the Government’s 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 cases of Demiroğlu and others (cited above, §§ 24-36) and Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013, §§ 47-59).
18. In view of the above, the Court concludes that this part of the application should be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
B. As to Article 13 of the Convention
19. The applicant, in substance, also complained that there was no effective remedy under Turkish law to compel the administration to honour its debt.
20. The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicant within the meaning of Article 13 of the Convention to complain about the non-execution of domestic court decisions for the purposes of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (see Turgut and Others, cited above, §§ 59-60).
21. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 May 2017.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy