Communicated on 7 February 2020
Published on 24 February 2020
SECOND SECTION
Application no. 98/18
Erdoğan ÖZKOÇAK and others
against Turkey
lodged on 30 November 2017
SUBJECT MATTER OF THE CASE
The application mainly concerns the retrospective application of a new provision which entered into force during the course of the proceedings initiated by the applicants.
In 1987 a land belonging to the applicants’ testator was expropriated by the administration, who sold part of it to a third person in 2008. Subsequently, on 9 November 2010 the applicants lodged an action before the Bodrum Civil Court of General Jurisdiction, claiming compensation under Article 22 of Law No. 2942 on Expropriation. Article 22 of the said Law provided that in cases where the reason for expropriation was no longer valid, the previous owners of an expropriated property could reclaim the property by paying back the expropriation amount together with statutory interest.
During the course of the proceedings, on 10 September 2014, a new paragraph was added to Article 22. That new provision set forth that the application of Article 22 would be subject to a five-year time-limit starting from the date the expropriation decision became final.
On 3 February 2015 the applicants’ case was dismissed on the basis of the above-mentioned additional paragraph, that is, on account of their failure to lodge the action within the five-year time-limit.
The Constitutional Court found the applicants’ complaint concerning their right to a fair trial and right of access to court inadmissible as being manifestly ill-founded. It also declared their complaint about their right to property inadmissible for non-exhaustion of domestic remedies.
Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complain about the retrospective application of the paragraph added to Article 22 of Law No. 2942, which according to them deprived them of the right to reclaim their land provided by that Article.
QUESTIONS TO THE PARTIES
1. Did the applicants have a "legitimate expectation" to reclaim their property pursuant to the provisions of Law No. 2942 (see, mutatis mutandis, Kemp and Others v. Luxembourg, no. 17140/05, 24 April 2008)?
If so, did the domestic courts’ dismissal of the applicants’ case by retroactively applying a provision, which had entered into force during the course of the proceedings, violate their right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 (see Maurice v. France [GC], no. 11810/03, ECHR 2005‑IX, and Kamoy Radyo Televizyon Yayıncılık ve Organizasyon A.Ş. v. Turkey, no. 19965/06, 16 April 2019)?
2. Did the applicants have a fair hearing in the determination of their civil rights, in accordance with Article 6 § 1 of the Convention? In particular, did the retrospective application of the additional paragraph of Article 22 of Law no. 2942 comply with the requirements of a fair trial (see Cabourdin v. France, no. 60796/00, 11 April 2006)?
APPENDIX
No.
Applicant’s Name
Birth date
Nationality
Place of residence
1
Erdoğan ÖZKOÇAK
11/05/1960
Turkish
MUĞLA
2
Namık GÜNAYDIN
10/05/1960
Turkish
MUĞLA
3
Sebahat GÜNAYDIN
03/06/1936
Turkish
MUĞLA
4
Zeki GÜNAYDIN
01/08/1954
Turkish
MUĞLA
5
Canan ÖZGEZGİN
07/11/1955
Turkish
MUĞLA
6
Alper ÖZKOÇAK
28/10/1988
Turkish
MUĞLA
7
Şehnaz Gizem ÖZKOÇAK
28/02/1994
Turkish
MUĞLA
Full & Egal Universal Law Academy