SECOND SECTION
DECISION
Application no. 35183/08
Mehmet KAPLAN and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 February 2017 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 20 June 2008,
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, Mr Mehmet Kaplan, Mr Kasım Kaplan and Ms Emine Demir, are Turkish nationals who were born in 1941, 1951 and 1943 respectively and live in Gaziantep. They are represented before the Court by Mr M. Birlik, a lawyer practicing in Şanlıurfa. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The Ministry of Energy and Natural Resources (“the administration”) expropriated the applicants’ plot of land (plot no.1247) in Nizip, Gaziantep. It also paid a certain amount for compensation.
4. On 9 February 1999 the applicants initiated compensation proceedings at the Nizip Civil Court of General Jurisdiction for additional compensation plus interest.
5. On 30 December 1999 the court awarded 1,836,469,200 Turkish liras (TRL) (approximately 3,400 euros (EUR)) plus interest at the statutory rate.
6. On 22 May 2000 the judgment was upheld by the Court of Cassation.
7. According to the information in the case file, the applicants received a partial payment on 09 January 2002 and the remainder was paid on 27 March 2008.
B. Relevant domestic law
8. A description of the domestic law and practise with respect to the Compensation Commission mentioned below (paragraphs 11-12) may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013); Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013); and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014).
COMPLAINT
9. The applicants complained that the excessive delay in the payment of the additional compensation award, coupled with the low interest rates, had caused them substantial financial loss. In this respect, they relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
10. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of the Convention about the late payment of the additional compensation awards.
11. The Government noted that pursuant to Law no. 6384 of 9 January 2013 a new Compensation Commission had been established to deal with applications concerning length of proceedings and 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.
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 Yıldız and Yanak ((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 depreciation of awards in expropriation cases.
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. Taking into account the Government’s 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, §§ 47-59), and Yıldız and Yanak (cited above, §§ 29-38).
15. In view of the above, the Court concludes that the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy