SECOND SECTION
DECISION
Application no. 43362/04
Hidayet GÜMÜŞ against Turkey
and 10 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 11 October 2016 as a Committee composed of:
Nebojša Vučinić, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
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. Their names and birth dates, as well as the names of their representatives, appear in the appendix.
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. Certain plots of land belonging to the applicants were designated as part of the public forest area. Subsequently, the applicants and/or the administrative authorities initiated proceedings before the domestic courts. Consequently, title deeds of the applicants were annulled and the plots of land in dispute were registered in the name of the Treasury because the domestic courts found that they were part of the public forest estate or had been formerly, pursuant to Section 2(B) of Law no. 6831. No compensation was awarded to the applicants.
5. The details of the applications are indicated in the table below.
Application no. and case name
Introduction date
Details of the land in dispute
Date on
which the proceedings were initiated
Date and no. of the first instance court decision that annulled the title deed to the land
Date and no. of the Court of Cassation’s final decision and notification date
Articles invoked
43362/04
Gümüş
01/11/2004
Istanbul, Pendik,
Emirli Village,
Ağılaltı District,
Plot No. 10,
Parcel No. 738,
4.080 m2
21/09/2000
16/04/2003 Pendik Civil Court,
E: 2000/573 K: 2003/252
02/03/2004
E: 2004/13235
K: 2004/2070
and
06/05/2004
Article 1 of Protocol no. 1
4517/06
Özdemir
21/01/2006
a) Balıkesir, Ayvalık, Bağyüzü Village,
Parcel No. 2,
62.400 m2
b) Balıkesir, Ayvalık, Hacıveliler Village,
Parcel No. 129,
237.000 m2
17/09/2003
06/08/2003
14/07/2004
Ayvalık Civil Court,
E: 2003/471
K: 2004/533
14/07/2004
Ayvalık Civil Court,
E: 2003/373
K: 2004/520
23/06/2005
E: 2005/5158
K: 2005/8459
and
23/07/2005
23/06/2005
E: 2005/5159
K: 2005/8458
and
23/07/2005
Article 1 of Protocol no. 1;
Article 6 § 1;
Article 8;
Article 13;
Article 17
Article 1 of Protocol no. 1 ;
Article 6 § 1;
Article 8;
Article 13;
Article 17
25878/07
Öztok
15/06/2007
Çanakkale,
Sarıcaeli Village,
Köycivarı District
Parcel no.772,
16500 m2
10/05/2006
11/07/2006
Çanakkale Civil Court,
E : 2006/334
K : 2006/369
20/04/2007
E: 2007/4173
K: 2007/5312
Article 1 of Protocol no. 1;
Article 6 § 1;
Article 13
48475/07
Anıltaş İthalat İhracat Pazarlama ve Ambalaj Sanayi A.Ş.
15/10/2007
Yalova, Çınarcık,
Esenköy Village,
Çeşme District,
Block No. 4,
Parcel No. 2492,
77.077, 26 m2
26/07/1999
21/06/2005
Yalova Civil Court,
E: 2004/37
K: 2005/1426
09/06/2006
E: 2006/5279
K: 2006/8124
and
20/09/2007
Article 1 of Protocol no. 1
54553/07
Gülsün
03/12/2007
Sinop, Durağan,
Ötegeçedüzlük District,
Block No. 155,
Plot No. 46-47 D-A,
Parcel No. 1,
172 m2
28/11/2005
23/06/2006,
Durağan Civil Court,
E: 2005/97
K: 2006/77
12/06/2007
E: 2007/6677
K: 2007/8023
and
26/09/2007
Article 1 of Protocol no. 1;
Article 6 § 1
23258/08
Genç
08/05/2008
Trabzon, Maçka,
Ormanüstü Village,
Block No. 137,
Parcel No. 2,
3.654, 95 m2
20/11/2002
17/10/2006,
Maçka Civil Court,
E: 2002/352
K: 2006/258
23/11/2007
E: 2007/13469
K: 2007/15063
and
17/12/2007
Article 1 of Protocol no. 1
36580/08
Kunter
28/07/2008
İstanbul, Silivri, 1. Bölge,
Büyükçavuşlu Village,
Ahmet Faki District,
Parcel no.803,
4900 m2
24/10/2005
27/12/2006
Silivri Civil Court,
E : 2006/420
K : 2006/87
25/03/2008
E: 2008/1474
K: 2008/4667
Article 1 of Protocol No. 1;
Article 6
47356/08
Tuğtepe and Others
22/09/2008
Kocaeli, Gebze,
Pelitli Village,
Plot no.77
Parcel no.1692,
10460 m2
06/10/2004
09/03/2007
Gebze Civil Court,
E : 2007/29
K : 2007/55
12/02/2008
E: 2007/18424
K: 2008/2078
and
31/03/2008
Article 1 of Protocol No. 1
52368/08
Konuklu
16/10/2008
İstanbul, Silivri,
1. Bölge,
Büyükçavuşlu Village,
Sırameşeler District
I- Plot no.3
Parcel nos./m2
671/ 4081 m2
672/ 2950 m2
673/ 2950 m2
II- Plot no.4
Parcel no.684,
3750 m2
24/10/2005
28/06/2007
Silivri Civil Court,
E : 2006/287
K : 2007/332
07/04/2008
E: 2008/3166
K: 2008/5352
and
05/05/2008
Article 1 of Protocol No. 1;
Article 6
54187/08
Öztürkcan
04/11/2008
İstanbul, Ümraniye,
Ömerli,
Plot no.6
Block no.35
Parcel no.19,
4449 m2
19/01/2004
22/11/2005
Ümraniye Civil Court,
E: 2004/54
K: 2005/495
09/04/2008
E: 2008/3303
K: 2008/5690
and
06/05/2008
Article 1 of Protocol No. 1
5400/09
Küçükşen
17/12/2008
İstanbul, Pendik,
Emirli Village,
Kokoğlu District,
Plot No. 5,
Parcel No. 825,
4.361,46 m2
26/03/2004
14/12/2006
Pendik Civil Court,
E: 2004/157
K: 2006/527
14/05/2008
E: 2008/3322
K: 2008/7376
and
20/06/2008
Article 1 of Protocol no. 1;
Article 6 § 1;
Article 14:
Article 17
B. Relevant domestic law and practice
6. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 10) may be found in Savaşçın and Others v. Turkey (dec.), no. 15661/07, 7 June 2016.
COMPLAINTS
7. The applicants complained under Article 1 of Protocol No. 1 to the Convention that they were deprived of their property without receiving any compensation.
8. In some cases, the applicants raised further complaints relying on Articles 6, 8, 13, 14 and 17 of the Convention.
THE LAW
9. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
10. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the annulment of their title deeds without any compensation constituted a disproportionate burden and thus breached their right to the peaceful enjoyment of their possessions.
11. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings, the delayed execution of judgments and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to examine complaints relating to, among other things, the alleged breaches of the right to peaceful enjoyment of possessions on account of the annulment of applicants’ title deeds where the land at issue is classified as part of the public forest. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
12. 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 Savaşçın and Others v. Turkey ((dec.), no. 15661/07, 7 June 2016), the Court declared the 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 annulment of the applicants’ title deeds because their land was classified as part of the public forest area.
13. 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.
14. 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 case of Savaşçın and Others, cited above.
15. In view of the above, the Court concludes that the applicants’ complaints regarding the annulment of their title deeds should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Other Alleged Violations of the Convention
16. In the applications nos. 4517/06, 25878/07, 54553/07, 36580/08, 52368/08 and 5400/09, the applicants also raised other complaints under various articles of the Convention. However, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares inadmissible the applications.
Done in English and notified in writing on 17 November 2016.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
APPENDIX
No
Application No
Applicant’s name,
Date of birth and
Place of residence
Represented by
43362/04
Hidayet GÜMÜŞ
1929
Istanbul
Bilal DAĞTEKİN
4517/06
Önder ÖZDEMİR
15/07/1954
Balıkesir
Vincent İŞİTMEZ
25878/07
Mustafa ÖZTOK
10/10/1966
Çanakkale
-
48475/07
ANILTAŞ İTHALAT İHRACAT PAZARLAMA VE AMBALAJ SAN A.Ş.
Yalova
Saadet AYHAN
54553/07
Mahmut GÜLSÜN
3/04/1955
Sinop
Zeynel KADAYIFCI
23258/08
Ali Fahri GENÇ
1/02/1928
Trabzon
Ahmet Metin GENÇ
36580/08
Ahmet Mithat KUNTER
1/09/1951
İstanbul
Ahmet BEKAR
47356/08
Vildan TUĞTEPE
13/03/1951
Kocaeli
Nimet ALPASLAN
25/03/1938
Kocaeli
Huriye GÜLÜMSER
25/12/1919
Kocaeli
Kıymet TUNA
27/11/1944
Kocaeli
Ayten GÜRLEYEN
52368/08
Hasibe KONUKLU
19/04/1942
Diyarbakır
Nazif YAVUZ
54187/08
Nahit ÖZTÜRKCAN
5/09/1951
Istanbul
Faruk ÖKSÜZ
5400/09
Yusuf KÜÇÜKŞEN
1/1/1933
Leiderdorp
Türkan YILMAZ
Full & Egal Universal Law Academy