SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7123/04
by ERCANLAR OTOMOTİV TİC. A.Ş.
against Turkey
The European Court of Human Rights (Second Section), sitting on 18 May 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 25 December 2003,
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
The applicant, Ercanlar Otomotiv Tic. A.Ş., is a joint stock company registered in Turkey and located in Istanbul. It was represented before the Court by Mr S.N. Gürel, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 November 1982 a public company, the Türkiye Süt Endüstrisi Kurumu (the State dairy producer, hereafter referred to as the “SEK”), decided to partially expropriate a plot of land (parcel no. 80) owned by the applicant company and located in Mersinli, İzmir.
On 25 February 1983 the applicant company was officially notified of the SEK's expropriation decision by a notice served through the notary public. It was indicated in the notice that expropriation compensation in the amount of 2,803,700 Turkish liras (TRL) had been deposited in the applicant company's name in a blocked bank account at the Alsancak Branch of Ziraat Bankası, a State-run bank.
The applicant subsequently sought the annulment of the expropriation. On 21 December 1983 the İzmir Administrative Court rejected the applicant's request and on 18 December 1984 the Supreme Administrative Court upheld the administrative court's decision.
On an unspecified date the applicant company commenced proceedings for additional compensation. On 4 November 1986 the İzmir Civil Court ordered that the amount of compensation be increased by TRL 7,848,800. The judgment became final on 17 February 1987, neither of the parties having appealed. On 25 November 1987 the additional expropriation was deposited in the same account at Ziraat Bankası in the applicant company's name.
The applicant company subsequently lodged an action with the İzmir Administrative Court for the annulment of the parcel plan pertaining to the expropriated plot of land. On 27 April 1988 the İzmir Administrative Court annulled the parcel plan as requested. On 29 May 1989 the Supreme Administrative Court upheld the judgment of the administrative court. A new parcel plan was prepared on 24 September 1998, which was also annulled by the İzmir Administrative Court on 18 October 2002. It appears that there is presently no parcel plan in respect of the land in question.
On 3 December 1987 the SEK commenced proceedings before the İzmir Civil Court for the compulsory registration of the title of the expropriated land in its name. Following proceedings which lasted for ten years and involved six examinations, on 1 April 1997 the Court of Cassation granted the suit. On 2 July 1997 it rejected the applicant company's rectification request. The Court of Cassation held that the pending parcel plan pertaining to the relevant land did not preclude the registration of its title in the expropriating company's name.
In the meantime, on 6 March 1992 the applicant company lodged an action for recovery of the expropriated land in accordance with Article 23 of the now defunct Expropriation Law (Law No. 6830). They argued that the public interest justifying expropriation in the present case had been lost as the land had not been put to use in accordance with the initial purpose of the measure. On 30 October 1996 İzmir Civil Court dismissed the applicant's request, holding that the conditions for restitution of expropriated land under Article 23 of the said Law had not materialised. On 4 April 1997 the Court of Cassation upheld this judgment and on 4 June 1997 it rejected the applicant company's rectification request.
On 11 November 1997 the SEK was merged with another public company, thereby losing its legal personality. Upon this merger, on 11 February 1998 the applicant company applied for the reopening of the proceedings concerning the recovery and the compulsory registration of the land. They argued that the land was no longer required for public purposes as the expropriating public company had ceased to exist. On 21 December 1999 the İzmir Civil Court rejected the applicant's request by two separate judgments (cases nos. 1996/529 E. and 1996/530 E.), holding that the conditions for reopening the proceedings had not been satisfied. According to the information in the case file, both judgments became final on 19 October 2000.
On 7 June 2000 the applicant company sent a letter to Ziraat Bankası to inquire whether the expropriation compensation, together with the additional amount, had been deposited with the bank and, in the affirmative, whether they were entitled to have access to the money. On 26 July 2000 they sent another letter to the bank, requesting it to expedite the reply. It is alleged that the bank never sent a written reply but orally informed the applicant company that they had no records regarding the requested information. The applicant company accordingly brought an action seeking a declaratory judgment (tespit davası) on 15 April 2002 before the İzmir Civil Court to establish whether the expropriation compensation had been deposited in a blocked account at Ziraat Bankası in its name or whether any payment had been otherwise made to it in compensation for the expropriation. The bank verified during the proceedings that the expropriation compensation had been deposited in a blocked account in the applicant company's name at their Alsancak Branch, but no attempt had been made to collect it. On 19 September 2002 the first‑instance court dismissed the applicant company's case, as the statements received from the bank had made it unnecessary to render a declaratory judgment. On 8 April 2003 the Court of Cassation upheld the judgment of the first-instance court and on 27 June 2003 it rejected the rectification request.
COMPLAINTS
The applicant company complained that the expropriation of the disputed land, despite the fact that it was not required for public use, together with the non-payment of compensation in return, amounted to a breach of Article 1 of Protocol No. 1.
The applicant company further complained that the various civil and administrative proceedings concerning the expropriation had lasted over twenty years, in a violation of the reasonable time requirement of Article 6 § 1 of the Convention.
THE LAW
1. The applicant firstly complained under Article 1 of Protocol No. 1 that its land had been unlawfully expropriated and that the expropriation did not serve any public interest. The Court notes in this connection that the applicant company sought the annulment of the expropriation on the same grounds in 1983, immediately after being put on notice of the expropriation. This request, however, was rejected on 18 December 1984 by a final decision of the Supreme Administrative Court. Subsequently, the applicant company lost its ownership of the land on 2 July 1997, when the compulsory registration proceedings were finalised in the SEK's favour. In the meantime, the applicant company's request for the restitution of its property was dismissed by the İzmir Civil Court on 30 October 1996, which judgment became final on 4 June 1997. After the SEK was merged with another public company and thereby lost its legal personality in 1997, the applicant company applied for a reopening of the restitution and compulsory registration proceedings in a final effort to nullify the expropriation and recover its land. The retrial request was similarly rejected by the Court of Cassation on 19 October 2000.
The Court notes that, despite the many efforts of the applicant company to exhaust available domestic remedies in relation to its complaint, it has failed to observe the six-month time-limit set out in Article 35 § 1 of the Convention. Whichever decision may be deemed final and definitive, the case should have been lodged with the Court, at the latest, within six months of the cassation judgment of 19 October 2000, whereas the introduction date of the present application was 25 December 2003.
It follows that this part of the application has been lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant company further contended under Article 1 of Protocol No. 1 that it had not received any compensation in exchange for the expropriated land.
The Government contested this allegation, holding that the expropriation compensation, together with the additional compensation, had been duly deposited in a blocked bank account in the applicant company's name and the latter had been notified of this. Instead of applying to the bank to receive this money, however, the applicant company had persistently sought the restitution of the land. The Government therefore argued that the applicant company alone was responsible for the current situation, as it had failed to take the appropriate steps to obtain its money.
The applicant company responded that, contrary to the Government's allegations, it had attempted to contact the relevant bank to inquire about the expropriation compensation, but had received no reply. It further stated, without much elaboration, that it could only access the money following an instruction sent by the administration to the bank for the release of the money, particularly in view of the fact that the land had no valid parcel plan.
The Court notes that, according to Article 46 of the Turkish Constitution and Section 3 of the Expropriation Act (Law no. 2942), upon the expropriation of a property by the State, the expropriation compensation should be paid in cash, at once. Therefore, the property owners should not in principle be required or expected to bring civil proceedings in order to receive compensation in return for their property. The owners may, nevertheless, be expected to take certain procedural steps to obtain the compensation due, the most obvious being an application to the relevant bank or the administration for payment (see Burdov v. Russia (no. 2), no. 33509/04, § 69, 15 January 2009). The Court finds it curious in the instant case that for over twenty years the applicant company took no steps to obtain its compensation. Moreover, when it finally decided to go after the money, it did no more than send two letters to the bank to verify its existence. The Court cannot find any evidence in the case file to suggest that the applicant company actually demanded this money at any point from the bank or directly from the administration, even after it was unequivocally established before the İzmir Civil Court that the compensation was still at Ziraat Bankası, ready for collection (see, a contrario, Tunç v. Turkey, no. 54040/00, § 28, 24 May 2005, where the applicant had taken a number of concrete steps, including bringing enforcement proceedings against the administration, to obtain the compensation).
Finally, the Court considers that nothing in the case file reveals any appearance of a restriction imposed by the State authorities on the applicant company's access to the money deposited in the bank. The Court notes in particular that it was made clear by the İzmir Civil Court during the compulsory registration proceedings that the lack of a valid parcel plan did not prevent the administration from acquiring ownership of the land and proceeding with the expropriation plans, which included the payment of compensation.
In the light of the above circumstances, the Court concludes that the applicant company has not shown sufficient diligence to obtain the payment in question. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Finally, the applicant company complained under Article 6 § 1 of the Convention that it had been denied the right to a fair hearing within a reasonable time, as the various proceedings embarked upon in the aftermath of the expropriation lasted approximately twenty years in total.
The Court notes that, following the service of the expropriation decision, the applicant company brought at least seven actions before civil and administrative courts, some of which lasted for considerable periods of time. However, the Court also notes that these proceedings were completely independent from each other, each brought on a separate basis for different reasons. It is, therefore, not possible to make a global assessment as regards the total length of these proceedings. Moreover, the effect of the six-month time-limit in Article 35 § 1 of the Convention precludes the Court from examining most of these proceedings individually; the only litigation satisfying that time-bar related to the declaratory judgment. The Court notes that the latter proceedings commenced on 15 April 2002 and ended on 27 June 2003. They thus lasted only one year, two months and twelve days before two levels of jurisdiction. In the absence of any substantial period of inactivity attributable to the authorities, the Court does not find that this period exceeded the reasonable time requirement.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy