SECOND SECTION
DECISION
Application no. 23298/09
Gazale KEPENÇ
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 December 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 30 March 2009,
Having regard to the declaration submitted by the respondent Government on 12 March 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms Gazale Kepenç, is a Turkish national, who was born in 1962 and lives in Mardin. She was represented by Ms İ. Fidan and Mr A. Aydemir, lawyers practising in Mardin.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant had a plot of land in Cumhuriyet Quarter, in the Kızıltepe District of Mardin, which had been registered in the land register as block no. 74 and parcel no. 3.
5. In 1986 the Kızıltepe Regional Directorate of Ministry of Education (hereinafter referred to as “the Directorate”) started to use the applicant’s plot of land with a view to construction of a school building.
6. On 29 June 2004 the applicant brought an action before the Kızıltepe Civil Court of First Instance against the Directorate and sought compensation for de facto expropriation of her land.
7. On 30 November 2006 the Kızıltepe Civil Court of First Instance awarded the applicant 86,765.66 Turkish liras (TRY – approximately 48,600 euros (EUR) at the time) of compensation plus statutory interest running from the date of introduction of the case.
8. On 3 December 2007 the Court of Cassation quashed the judgment of 30 November 2006 on the ground of lack of proper investigation and remitted the case to the Kızıltepe Civil Court of First Instance for further investigation.
9. On 13 November 2008 the Kızıltepe Civil Court of First Instance awarded the applicant TRY 86,765.66 plus interest at the statutory rate, running from 29 June 2004.
10. On 9 February 2009 the Court of Cassation upheld the judgment of the first instance court.
11. Following notification of the judgment of the Kızıltepe Civil Court of First Instance, on 26 February 2009, the applicant initiated enforcement proceedings before the İzmir Enforcement Office.
12. On 12 March 2009, the Directorate paid the compensation award in full together with the statutory interest, namely TRY 178,445.20 (approximately EUR 79,750 at the time), to the applicant.
THE LAW
A. De facto expropriation of the applicant’s land
13. The applicant complained that her right to peaceful enjoyment of possessions had been breached due to the de facto expropriation of her plot of land. She relied on Article 1 of Protocol No. 1 to the Convention. This complaint was communicated to the Government.
14. After the failure of attempts to reach a friendly settlement, by a letter of 12 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follow:
“The Government hereby wishes to express by way of unilateral declaration that the interference with the applicant’s property rights does not meet the standards enshrined in Article 1 of Protocol No. 1 to the Convention.
Consequently, the Government is prepared to pay the applicant 2,070 (two thousand and seventy) euros to cover any all pecuniary and non-pecuniary damage and costs and expenses. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government therefore invites the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason’’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37§ 1 (c) of the Convention.”
15. By a letter of 5 May 2014, the applicant’s representative indicated that he was not satisfied with the terms of the unilateral declaration.
16. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.
17. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
18. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
19. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the de facto expropriation and the application of a lower rate of interest to compensation awards for de facto expropriations instead of the rate applicable to formal expropriation procedures (see Sarıca and Dilaver v. Turkey, no. 117655/05, §§ 38-52, 27 May 2010, and Ergen and Others v. Turkey, nos. 35364/05 and 4 others, §§ 27-30, 7 December 2010).
20. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).
21. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
22. The Courts considers that this amount (2,070 euros (EUR)) should be converted into the currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
23. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
24. In view of the above, it is appropriate to strike this complaint out of the list.
B. Excessive Length of Proceedings
25. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the domestic proceedings.
26. The Court observes that a 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 Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new 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 length of proceedings.
27. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for no‑exhaustion of domestic remedies.
C. Other Complaints
28. Invoking Article 1 of Protocol No.1 to the Convention, the applicant also complained that the amount of the compensation awarded for de facto expropriation of her land had depreciated considerably in value due to the prolonged proceedings. She further maintained that the amount of the compensation award paid to her had been less than the market price of her land. These complaints were not communicated to the Government.
29. 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,
Takes note of the terms of the respondent Government’s declaration under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 17 January 2019.
Hasan Bakırcı Ledi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy