SECOND SECTION
DECISION
Application no. 8176/07
Hacı ONAR and Mehmet ONAR
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 12 February 2007,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Hacı Onar and Mr Mehmet Onar, are Turkish nationals, who were born in 1950 and 1952 respectively and live in Şırnak. They were represented before the Court by Mr Ş. Taşkın and Mr Ş. Kurul, lawyers practising in Mardin.
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 applicants had a plot of land in Yenimahalle, in the Merkez District of Şırnak, which had been registered in the land register as plot no. 50L4c, block no. 577, and parcel no. 40.
5. In 2001 the General Directorate of National Roads and Highways (Karayolları Genel Müdürlüğü, hereinafter referred to as “the Directorate”) started using the applicants’ land with a view to construction of a road.
6. On 20 June 2003 the applicants brought an action before the Şırnak Civil Court of First Instance against the Directorate and sought compensation for de facto expropriation of their land.
7. On 19 July 2005 the Şırnak Civil Court of First Instance awarded the applicants 57,502.08 Turkish liras (TRY) plus interest at the statutory rate, running from 20 June 2003.
8. On 17 February 2006 the judgment of the Şırnak Civil Court of First Instance was served on the applicants’ representative and it became final on 15 March 2006.
9. On 22 March 2006 the applicants initiated enforcement proceedings before the Şırnak Enforcement Office.
10. On 24 April 2007 the Directorate paid the compensation award in full, together with the statutory interest.
B. Relevant domestic law and practice
11. A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 18 below) may be found in Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013).
12. 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.”
13. 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 compensation. The same section further prescribes that the amount of compensation determined by the court judgment shall be specified in the enforcement order.
COMPLAINTS
14. Invoking Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 to the Convention, the applicants complained about the delay in the payment of the compensation for de facto expropriation of their land.
15. The applicants complained under Article 1 of the Protocol No. 1 to the Convention that the domestic courts’ failure to apply the maximum interest rate applicable to public debts, as defined in Article 46 of the Constitution, had breached their rights to the peaceful enjoyment of their possessions.
16. The applicants further complained of a violation of Article 13 of the Convention on account of the lack of any effective remedies in respect of their complaint concerning the non-payment of their compensation award.
THE LAW
A. As to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention (delayed execution of the judgment)
17. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities delayed paying them the compensation amount awarded by the domestic courts.
18. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings, the delayed execution of judgments and the non-execution of judgments. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
19. The Court observes that, as pointed out by the Government, 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 Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013), 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 for complaints concerning the failure of the authorities to enforce judicial decisions.
20. 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 that type which had already been communicated to the Government.
21. However, taking into account the Government’s preliminary 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 case of Demiroğlu, cited above.
22. In view of the above, the Court concludes that this part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. As to Article 1 of Protocol No. 1 to the Convention (non‑application of maximum interest rate to the compensation award)
23. The applicants complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation award for their de facto expropriated land had caused them significant pecuniary loss. They invoked Article 1 of Protocol No. 1 to the Convention in this respect.
24. The Government contested that argument.
25. 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 the 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).
26. In the present case, the applicants complained about the low interest rate applied to their compensation award. The Court observes that the interest rate applicable to the applicants’ compensation award for de facto expropriation of their property was determined by the Şırnak Civil Court of First Instance on 19 July 2005. The Court therefore concludes that the final decision regarding the applicants’ complaint was that of the Şırnak Civil Court of First Instance which was served on the applicants on 17 February 2006 (see, mutadis mutandis, Sarıca and Dilaver v. Turkey, no. 11765/05, §§ 31-32, 27 May 2010). However, the present application was lodged with the Court on 12 February 2007, more than six months after the date on which the final decision had been served on the applicants (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).
27. In view of the above, the Court concludes that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
C. As to Article 13 of the Convention
28. The applicants, relying on Article 13 of the Convention, also complained that there was no effective remedy under Turkish law to compel the administration to execute the court judgments and to enforce its debts.
29. The Government argued that there were effective remedies at the applicants’ disposal in domestic law for their complaint regarding the delayed enforcement of the judgment. They therefore invited the Court to find no violation of Article 13 of the Convention in the present case.
30. The Court recalls that the Compensation Commission established by Law no. 6384 provides for a remedy to the applicants within the meaning of Article 13 of the Convention to complain about the non-execution of domestic court decisions for the purposes of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (see Turgut and Others, ((dec.), no. 4860/09, §§ 59-60, 26 March 2013).
31. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with 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 18 January 2018.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy