SECOND SECTION
DECISION
Application no. 29241/07
Fikriye GALİÇ and Ayşe ATINIZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 November 2016 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 28 June 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Fikriye Galiç and Ms Ayşe Atınız, were Turkish nationals, who were born in 1927 and 1923 respectively. The first applicant died on 14 January 2009 and the second applicant died on 26 December 2010. Following the communication of the case, their heirs, namely Mr Ali Üstün Atınız, Mr Yaşar Atınız, Ms Birgül Atınız (Tekçakır) for the first applicant, and Ms Naime Yapıcı, Mr Naim Yapıcı, Mr Mustafa Yapıcı for the second applicant informed the Court that they wished to pursue the applications in their stead. The applicants were represented before the Court by Mr C. Yıldırım, a lawyer practising in İzmir.
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. In 1974 the Mechanical and Chemical Industry Corporation (Makine ve Kimya Endüstrisi Kurumu) decided to expropriate a plot of land belonging to the ancestor of the applicants (Mr Cevahir Caha) and determined the amounts to be paid for the land in question. The administration completed the expropriation proceedings on 15 November 1976.
5. On 19 December 1976 Mr Cevahir Caha passed away and the applicants were notified about the expropriation proceedings on 28 December 1977.
6. On 3 December 1982 the applicants filed an action for additional compensation in accordance with the Expropriation Law which was in force at that time. On 25 December 1984 the Aliağa Civil Court of General Jurisdiction decided to discontinue the case due to the failure of the applicants to follow the proceedings. The applicants did not use their right to renew their case within the statutory time-limit, and subsequently on 30 December 1985 the first instance court dismissed the case. The applicants were notified of this decision on 18 March 1986. No appeal was filed against this decision and accordingly it became final.
7. On 27 March 1986 the applicants resubmitted their claims for additional compensation before the Aliağa Civil Court of General Jurisdiction. On 13 May 1986 the court dismissed the case, stating that their case was time-barred. In this connection, the court referred to the previous proceedings that had been previously dismissed. On 16 October 1986 the Court of Cassation upheld this judgment.
8. On 24 April 2001 the Law on Expropriation was amended. Accordingly, relevant administration bodies were given the right to initiate proceedings before the courts in order to have the amount of compensation determined and to have the title of the impugned plot be registered in their title.
9. Subsequently, on 8 May 2001 the administration filed an action before the Aliağa Civil Court of General Jurisdiction and requested that the title of the impugned land be registered in their name. Referring to the previous proceedings, mentioned above, on 5 November 2002 the court decided that the title deed of the land be registered in the name of the administration. On 22 March 2004 the Court of Cassation quashed this decision, pointing out to the fact that no compensation had been paid to the applicants.
10. On 1 July 2005 the applicants were paid the initial amount of compensation for expropriation fixed by the authorities in 1974, namely 0,51 Turkish liras.
11. On 10 November 2005 the Aliağa Civil Court of General Jurisdiction ordered that the title deed of the land be registered in the name of the administration.
12. On 21 November 2006 the Court of Cassation upheld the judgment.
B. Relevant domestic law
13. A description of the domestic law regarding the new remedy introduced by Law no. 6384 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
14. Relying on Article 1 of Protocol 1 to the Convention, the applicants complained that delay in the expropriation proceedings and the lack of interest breached their right to peaceful enjoyment of their property.
15. Under Article 6 of the Convention, the applicants also complained about the excessive length of the proceedings. Under the same provision, they also argued that the domestic courts had failed in the interpretation of domestic law and stated that the courts should have applied the provisions of the new law, which were in their favour.
THE LAW
A. Complaints regarding the length of the proceedings and depreciation of the expropriation compensation
16. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants complained about the financial loss they had suffered as a result of the late payment of the expropriation amount without any default interest. The applicants further complained about the excessive length of the proceedings under Article 6 of the Convention.
17. 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. 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 applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
18. 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 decisions in the cases of Turgut and others ((dec.), no. 4860/09, 26 March 2013) and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), 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 the excessive length of the proceedings and depreciation of awards in expropriation cases.
19. 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.
20. 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 cases of Turgut and others ((dec.), no. 4860/09, 26 March 2013) and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014).
21. In view of the above, the Court concludes that this part of the applications should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Remaining complaints
22. The applicants complained under Article 6 of the Convention about the fairness of the proceedings and alleged that the national courts had failed in the interpretation of the domestic law.
23. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to 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 15 December 2016.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy