SECOND SECTION
DECISION
Application no. 52126/09
KIRPIKLAR TARIM ÜRÜNLERİ SAN. VE TİC. LTD. ŞTİ
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 September 2009,
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, Kırpıklar Tarım Ürünleri Sanayi ve Ticaret Limited Şirketi is a limited liability company registered in Turkey. It was represented before the Court by Mr A. Aktay, a lawyer practising in Mersin.
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 company had a plot of land in the Tarsus District of Mersin, which had been registered in the land registry as block no. 332 and parcel no. 5.
5. On an unspecified date, the General Directorate of National Roads and Highways (Karayolları Genel Müdürlüğü, hereinafter referred to as “the Directorate”) started using the applicant company’s land with a view to construction of a road.
6. On 7 October 2002 the applicant company brought an action before the Tarsus Civil Court of First Instance against the Directorate and requested compensation for de facto expropriation of its land.
7. On 4 June 2007 the Tarsus Civil Court of First Instance awarded the applicant company an amount of 42,250 Turkish liras (TRY) with statutory rate of default interest running from the date when the case had been introduced. The judgment became final on 26 May 2008 after the Board’s appeal and rectification requests were rejected by the Court of Cassation respectively. Following the proceedings before the Court of Cassation, the case file was deposited with the Tarsus Civil Court of First Instance’s registry on 30 June 2008.
8. On 17 March 2009 the applicant company submitted a copy of the judgment delivered by the Tarsus Civil Court of First Instance to the Mersin Enforcement Office and initiated enforcement proceedings. It also asked the enforcement office to apply the maximum interest rate to its compensation award pursuant to Article 46 of the Constitution.
9. On 20 March 2009 the Directorate paid a part of the compensation award, together with the statutory rate of default interest.
B. Relevant domestic law and practice
10. The relevant parts of Article 46 of the Constitution, as amended on 3 October 2001, read as follows:
“Article 46:
...
The compensation for expropriation and the amount regarding its increase rendered by a final judgment shall be paid in cash and in advance. ...
...
An interest equivalent to the highest interest paid on public claims shall apply to the ... expropriation compensations which have not been paid for any reason.”
11. Section 32(1) of the Enforcement and Bankruptcy Act (Law no. 2004) provides that the enforcement office will issue an enforcement order to the debtor following the submission of a court judgment concerning any money debt. The same section further prescribes that the amount of money determined by the court judgment shall be specified in the enforcement order.
COMPLAINT
12. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant company complained that the domestic courts’ failure to apply the highest interest rate, as prescribed in Article 46 of the Constitution, for the de facto expropriation of its land had breached its right to a fair trial and to peaceful enjoyment of possessions. It alleged, in particular, that this practice had led to a reduction in the due compensation amount.
THE LAW
13. The applicant company complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation award for its de facto expropriated land had caused a significant pecuniary loss. It invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in this respect.
14. The Government contested that argument.
15. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter where it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies. It is not open to the Court to set aside the application of the six-month rule even in the absence of a relevant objection from the Government (see Belaousof and Others v. Greece, no. 66296/01, § 38, 27 May 2004; Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008; and Toner v. the United Kingdom (dec.), no. 8195/08, 15 February 2011).
16. In the present case, the applicant company complained about the low interest rate applied to its compensation award. The Court observes that the Tarsus Civil Court of First Instance determined the interest rate applicable to the applicant company’s compensation award for de facto expropriation of its property by its judgment of 4 June 2007 and that this judgment became final on 26 May 2008. The Court therefore concludes that the final decision regarding the applicant’s complaint was the decision delivered on 4 June 2007 (see, mutadis mutandis, Sarıca and Dilaver v. Turkey, no. 11765/05, §§ 31-32, 27 May 2010). It considers that the applicant company must have been aware of the final decision at the latest on 30 June 2008, when the case file was deposited with the first instance court’s registry. However, the present application was lodged with the Court on 19 September 2009, more than six months from that date (see Şat v. Turkey, no. 34993/05, §§ 16-18, 14 June 2011, and Gerçek and Others v. Turkey, no. 54223/08, §§ 16-18, 13 December 2011).
17. In view of the above, the Court concludes that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 January 2018.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy