SECOND SECTION
DECISION
Application no. 31539/07
Cafer FIRAT
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 February 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 application lodged on 13 July 2007,
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 Cafer Fırat, is a Turkish national, who was born in 1952 and lives in Istanbul. He was represented before the Court by Mr T. Tepe, a lawyer practicing in Istanbul.
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 was a co-owner of a plot of land in the Küçükçekmece district of Istanbul.
5. On 7 July 1989 the National Directorate of Roads and Highways (“the directorate”) expropriated the impugned plot of land.
6. On 16 July 2004 the applicant brought an action before the Küçükçekmece Civil Court of First Instance and asked for additional compensation.
7. On 19 July 2005 the Küçükçekmece Civil Court of First Instance awarded 868,219,621,000 Turkish liras (TRY) (approximately 545,000 euros (EUR) at the time) plus interest at the statutory rate.
8. On 28 November 2005 the Court of Cassation upheld the judgment of the first-instance court.
9. On 19 September 2005 the applicant applied to the Şişli Enforcement Office in order to enforce the court decision.
10. According to the information in the case file, on various dates the directorate made partial payments and finally on 26 May 2010 paid the last payment, thus having paid the amount in full.
B. Relevant domestic law and practice
11. A description of the domestic law and practise with respect to the Compensation Commission mentioned below (paragraph 14-15) may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013); Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013); and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014).
COMPLAINT
12. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that the administration delayed the payment of the additional compensation at a time when the annual rate of inflation in Turkey was very high. He further complained about the insufficient interest rate that had been applied in his case.
THE LAW
13. The applicant complained about the financial loss he had suffered as a result of the substantial delay in the enforcement proceedings and the insufficiency of the interest rate that had been applied in his case.
14. The Government noted that pursuant to Law No. 6384 of 9 January 2013 a new Compensation Commission had been established to deal with applications concerning length of proceedings and non-enforcement of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by a decree adopted on 16 March 2014 to examine complaints relating to, among other things, the alleged loss of value of the amount of the expropriation compensation due to the effects of inflation and the length of the proceedings. 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 Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), the Court declared 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 depreciation of awards in expropriation cases.
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. However, 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 case of Yıldız and Yanak (cited above).
18. In the view of the above, the Court concludes that the application should 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 23 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy