SECOND SECTION
DECISION
Application no. 858/07
Necmı MUTLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 November 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 27 December 2006,
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, Mr Necmi Mutlu, is a Turkish national, who was born in 1935 and lives in Istanbul. He was represented before the Court by Mr Mehmet Alacacı and Ms Mukadder Kayakaçan, lawyers practising in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant owned a plot of land (no.7/2689) in the area of Firuzköy, in the district of Avcılar, Istanbul. The parcel in question remained in legend of 1/100.000 scale local development plan as University.
4. On an unspecified date, an annotation (şerh) was made in the land registry records indicating that the applicant’s land would be expropriated by the Istanbul University (hereinafter “the University”).
5. On 3 September 2002 the applicant initiated proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for de facto expropriation.
6. On 7 November 2002, relying on expert reports which had indicated that the applicant’s land had been fenced off by the University, the Küçükçekmece Civil Court of First Instance awarded the applicant 305,250,000,000 Turkish liras (TRL) by way of compensation for de facto expropriation. In its judgment, the first-instance court held in particular that the land at issue had been under the effective control of the University and that access to the land was restricted due to the fences that had been built around the land.
7. On 9 November 2004 the Court of Cassation quashed the judgment of the Küçükçekmece Civil Court of First Instance, holding that the land in question had not been controlled or used effectively by the University.
8. On 13 May 2005 the Küçükçekmece Civil Court of First Instance complied with the decision of the Court of Cassation and dismissed the case.
9. On 20 December 2005 the Court of Cassation upheld the judgment of the first instance court.
10. On 8 June 2006 the rectification request of the applicant was rejected by the Court of Cassation.
THE LAW
A. Complaint regarding the restriction imposed on the applicant’s land
11. Relying on Article 1 of Protocol No.1 to the Convention, the applicant complained about the restriction imposed on his land as a result of the local land development plan. In this connection, he maintained that although an expropriation annotation had been recorded in the land registry logs in respect of his land, the domestic courts’ dismissal to his compensation claim was in breach of his right to property.
12. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established in Turkey to deal with applications concerning length of proceedings, the delayed execution of judgments and the non-execution of judgments. They further noted that the jurisdiction of the Compensation Commission had subsequently been enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to encompass the examination of complaints relating to, among other things, alleged breaches of the right to peaceful enjoyment of possessions on account of the allocation of privately-owned land for public use under local land development plans. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.
13. The Court observes that, as pointed out by the Government, a new domestic remedy was 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 judgment in the case of Paksoy and Others v. Turkey ((dec.), no. 19474/10, 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 in respect of complaints concerning the allocation of applicants’ land for public use in local land development plans.
14. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications (of the type established under the Court’s Ümmühan Kaplan judgment) which had already been communicated to the Government.
15. However, taking into account the Government’s preliminary objection regarding the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Paksoy and Others, cited above.
16. In view of the above, the Court concludes that the applicant’s complaint concerning the restrictions imposed on his land by the local land development plan should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Other Complaints
17. Relying on Article 14 of the Convention, the applicant complained about the domestic courts’ allegedly discriminatory approach against him for having rejected his case. In this connection, he claimed that the domestic courts had granted the compensation request of those who had been under the same conditions. The applicant also alleged a violation of Articles 17 and 18 of the Convention.
18. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with the Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 December 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy