SECOND SECTION
DECISION
Application no. 6229/09
Ali ÖNER and İsmail ÖNER against Turkey
and 2 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 28 March 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 applications lodged on the various dates indicated in the appended table,
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 are Turkish nationals. Their names and birth dates, as well as the names of their representatives, appear in the appendix.
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 were owners of plots of land which were designated as part of the public forest area. Subsequently, the administrative authorities initiated proceedings before the domestic courts. As result of these proceedings, title deeds of the applicants were annulled and the plots of land in dispute were registered in the name of the Treasury.
5. The details of the applications are set out in the attached table.
B. Relevant domestic law and practice
6. A description of the relevant domestic law regarding the designation of land as public forest area may be found in Köktepe v. Turkey (no. 35785/03, §§ 36-65, 22 July 2008); Altunay v. Turkey ((dec.), no. 42936/07, §§ 20-27, 17 April 2012); and Arıoğlu and Others v. Turkey ((dec.), no. 11166/05, §§ 9-18, 6 November 2012).
7. A description of the domestic law and practice with respect to the Compensation Commission (see paragraphs 12-13 below) may be found in Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013.
COMPLAINTS
8. Invoking Article 1 of Protocol No. 1 to the Convention, the applicants complained that they were deprived of their property without any compensation.
9. The applicants complained under Article 6 § 1 of the Convention that the domestic proceedings were not concluded within a reasonable time. In application no. 6229/09, relying on the same article, the applicants further complained about the fairness of the proceedings.
THE LAW
10. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
A. As to Article 6 § 1 of the Convention (length of proceedings)
11. The applicants complained that the length of the domestic proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
12. 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 the length of proceedings and the non-execution of judgments. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they should avail themselves of the remedy before the Compensation Commission.
13. 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 Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), 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 length of proceedings.
14. 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.
15. However, taking into account the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut, cited above.
16. In view of the above, the Court concludes that this part of the applications 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
17. The applicants complained that they were deprived of their property without any compensation.
18. The Government submitted that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies, as the applicants should request compensation for their loss pursuant to Article 1007 of the Civil Code.
19. The Court observes that following its previous judgments on the subject, in November 2009 the Court of Cassation reversed its position on the application of Article 1007 of the Civil Code, thus allowing compensation to be paid to those who had been deprived of property forming part of a public forest area. The Court of Cassation confirmed that approach in several subsequent judgments. It later adopted a position on the time-limit for bringing a compensation claim and the method for calculating the amount to be awarded. Thus, a claim for compensation corresponding to the real value of the property could be brought within ten years from the date on which the judgment declaring the document of title void had become final. This remedy is now being used regularly (see Mehmet Altunay v. Turkey (dec.), no. 42936/07, §§ 25-27, 17 April 2012, and Arıoğlu and Others v. Turkey (dec.), no. 11166/05, §§ 15-16, 6 November 2012).
20. In this context the Court concluded in Mehmet Altunay (cited above, §§ 32-38) and Arıoğlu and Others (cited above, §§ 26-33) that as a result of the recent changes in the domestic law, the applicants could seek redress before domestic courts. There is no reason to adopt a different approach in the present case. The Court observes that the decisions annulling the applicants’ title deeds became final in 2008 and 2009, and therefore the applicants can still initiate proceedings before the domestic courts based on Article 1007 of the Civil Code within ten years from the date on which the final judgments depriving them of their property were served on them.
21. In view of the above, the Court concludes that the applicants should avail themselves of the new remedy and that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. Other Complaint
22. In application no. 6229/09, the applicants further relied on Article 6 of the Convention and complained about the fairness of the proceedings. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in Article 6 of the Convention. 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,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 4 May 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
APPENDIX
Application no. and case name
Introduction date
The applicant’s
name, date of birth, and
place of residence
Represented by
Details of the land in dispute
Date and no. of the first-instance court decision that annulled the title deed to the land
Date and no. of the Court of Cassation’s final decision and notification date
6229/09
Öner
28/01/2009
Ali Öner,
03/03/1955, İstanbul
İsmail Öner,
02/08/1949, Elazığ
Enver Nalbant,
İstanbul
İstanbul, Eyüp, Pirinççi,
Plot No.9,
Parcel No. 308
Eyüp Civil Court of First Instance,
27/12/2007
E: 2002/1117
K: 2007/430
16/10/2008
E:2008/13146
K:2008/13249
and
31/10/2008
6793/09
Şarlak
26/01/2009
Hilmi Şarlak,
01/01/1953, Muğla
Eyüp Dirliktutan,
Muğla
Muğla, Ortaca, Mergenli,
Parcel No. 639
Ortaca Civil Court of First Instance,
12/04/2007
E: 2007/52
K: 2007/82
30/06/2008
E:2008/7680
K:2008/9524
and
18/08/2008
32206/09
Çelik
27/05/2009
Mustafa Çelik, 26/05/1952, Samsun
Remziye Söylemez,
Ankara
Samsun,
Merkez,
Düvecik,
Plot No. 18,
Parcels Nos. 393 and 424
Samsun Civil Court of First Instance,
25/03/2008
E: 2008/3
K: 2008/70
20/01/2009
E:2009/1071
K:2009/552
and
03/02/2009
Full & Egal Universal Law Academy