SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15573/03
by Fatma GÜRLEŞEN and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 April 2008 as a Chamber composed of:
Françoise Tulkens, President,
Antonella Mularoni,
Ireneu Cabral Barreto,
Rıza Türmen,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 5 February 2003,
Having deliberated, decides as follows:
THE FACTS
The applicants, whose names and dates of birth appear in the appendix, are all Turkish nationals. They are represented before the Court by Mr K. Bayraktar, a lawyer practising in Ankara.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were shareholders of a plot of land located in Keçiören, Ankara.
On an unspecified date the Keçiören Municipality (hereinafter “the Municipality”) expropriated the applicants’ plot of land and paid them the sum of 7,521,210,000 Turkish liras (TRL) in compensation for expropriation.
On 24 November 1998 the applicants initiated proceedings against the Municipality before the Ankara Civil Court seeking additional compensation.
On 20 December 1999 the first-instance court awarded the applicants additional compensation of TRL 31,756,220,000 plus interest at the statutory rate accruing from 24 December 1998.
On 8 February 2000 the applicants commenced enforcement proceedings against the Municipality.
On 3 July 2000, on an appeal by the Municipality, the Court of Cassation quashed the judgment in part in respect of some of the applicants due to procedural irregularities and remitted the case to the first-instance court.
On 20 February 2001 the Ankara Civil Court remedied the procedural irregularities indicated by the Court of Cassation and awarded additional compensation to the applicants on the same terms as determined in its previous judgment.
On 11 June 2001 the Court of Cassation upheld the judgment of the first-instance court.
Between February 2000 and June 2001 the Municipality of Keçiören made certain payments to the applicants in several instalments in the total sum of TRL 27,935,977,000. On 19 September 2003 the Ankara Enforcement Office declared that the applicants had an outstanding claim of TRL 116,518,578,000 as of that date.
On 26 October 2006 the applicants signed an agreement with the Municipality whereby the latter agreed to make the outstanding payments by the end of February 2007 with the proviso that the applicants renounce 12.5% of their claims and discontinue all enforcement proceedings.
The outstanding payments for additional compensation were made in January and February 2007 by the Municipality.
COMPLAINTS
In their initial application, the applicants complained of a violation of Article 1 of Protocol No. 1 on account of the non-enforcement of the judgments of 20 December 1999 and 20 February 2001 regarding the payment of the additional compensation and requested pecuniary and non-pecuniary damages accordingly.
In a letter dated 24 December 2007 the applicants declared that they withdrew the complaint under Protocol No. 1 with regard to non‑enforcement in the light of the agreement signed with the Municipality of Keçiören. However, they maintained their allegation of a violation of Article 1 of Protocol No. 1 in this letter on account of the non-pecuniary damage suffered due to the excessive delay in the payment of additional compensation.
THE LAW
A. As regards the applicant Nazife Ekincioğlu
The Court notes that one of the applicants, Nazife Ekincioğlu, died on 8 April 2002 during the domestic proceedings but before the instant application was lodged. In this connection, the Court points out that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Macedonia Gavrielidou and Others v. Cyprus (dec.), no. 73802/01, 13 November 2003). Therefore, Nazife Ekincioğlu cannot claim to have been a victim of a violation of her rights under the Convention and Protocol No. 1.
It follows that the application insofar as it relates to the complaints made on behalf of Nazife Ekincioğlu is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
B. As regards the applicants Fatma Gürleşen, Fahriye Kırten, Nurettin Gürleşen, Fahrettin Gürleşen, Mehmet Ezgi, Mustafa Tokatlı, Mehmet Tokatlı, Semanur Çobanoğlu (Tokatlı), Aydın Tokatlı, Ahmet Tokatlı, Feriha Uzan (Tokatlı), Zerrin Ahi (Tokatlı), Ali Tokatlı, Ali İhsan Ekincioğlu, Bekir Ekincioğlu, Mustafa Özkal, Ergun Yosunkaya, Fatma Ergenç, Halil İbrahim Yosunkaya and Mehmet Yosunkaya
The applicants complained under Article 1 of Protocol No. 1 that they had suffered non-pecuniary damage as a result of the delay in the payment of the additional compensation despite a final court order.
The Court considers that it would be more appropriate to examine the applicants’ complaint from the standpoint of Article 6 § 1 of the Convention, which guarantees everyone a fair and public hearing within a reasonable time, as this complaint essentially concerns the non-pecuniary damage that the applicants allegedly suffered due to the delay in payment.
The Court observes that the applicants reached a friendly settlement with the Municipality of Keçiören and signed an agreement on 26 October 2006 whereby the Municipality agreed to pay the outstanding debt in relation to the additional compensation by February 2007, with the proviso that the applicants renounced 12.5% of their claims and ceased all enforcement proceedings in relation to the debt. The Court further observes that the outstanding payments were effected in January and February 2007 in accordance with the agreement.
The Court refers to its case-law in cases such as Kırten and Üveyik v. Turkey ((dec.), no. 9016/03, 13 March 2007) and Hüseyin Sarı v. Turkey ((dec.), no. 14798/03, 29 September 2005) in which similar agreements signed with the administration were regarded as an explicit manifestation of the applicants’ will to put an end to litigious proceedings commenced against the administration. The respective applicants, having agreed to the amount and modalities of payment outlined in the agreements, were accordingly no longer deemed to be victims of any violations of Article 1 of Protocol No. 1.
The Court considers that the agreement signed by the applicants in the present case similarly constitutes a compromise whereby the applicants agreed to their compensation without any further delay on condition that they forewent 12.5% of their claims and waived their right to take any further enforcement proceedings. The Court considers, in these circumstances, and in the light of its aforementioned case-law, that the agreement signed with the Municipality not only settled the applicants’ claims with regard to their pecuniary demands but also had the effect of waiving any claims to non-pecuniary damages the applicants might have had.
It therefore follows that the applicants’ complaint regarding the alleged non‑pecuniary damage suffered on account of the delayed payment of additional compensation is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention as the applicants can no longer be considered as victims in view of the agreement signed with the Municipality.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Greffière adjointePrésidente
Annex
Details regarding names and birth dates of applicants
1. Fatma Gürleşen 1923
2. Fahriye Kırten (Gürleşen)1946
3. Nurettin Gürleşen1953
4. Fahrettin Gürleşen1941
5. Mehmet Ezgi1951
6. Mustafa Tokatlı1941
7. Mehmet Tokatlı1965
8. Semanur Çobanoğlu (Tokatlı)1958
9. Aydın Tokatlı1963
10. Ahmet Tokatlı1951
11. Feriha Uzan (Tokatlı)1954
12. Zerrin Ahi (Tokatlı)1959
13. Ali Tokatlı1960
14. Nazife Ekincioğlu1919
15. Ali İhsan Ekincioğlu1954
16. Bekir Ekincioğlu1942
17. Mustafa Özkal1935
18. Ergun Yosunkaya1937
19. Fatma Ergenç1936
20. Halil İbrahim Yosunkaya1946
21. Mehmet Yosunkaya1941
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