SECOND SECTION
DECISION
Application no. 19474/10
Maksut PAKSOY and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 7 June 2016 as a Chamber composed of:
Julia Laffranque, President,
Işıl Karakaş,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 20 February 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Maksut Paksoy, Ms Güler Ayabakan, Ms Alime Aydede, Ms Mebzul Dalbudak, Mr Ahmet Melih Dedeköy, Ms Mahiser Şamlıoğlu, Mr Mustafa Sezdi, Mr Hacı Abdi Sezdi, Mr Mükremin Sezdi, Ms Ulviye Sezdi (Birol), Ms Dürdane Sezdi (Saydam), Ms Emine Sezdi (Şentürk), Mr İhsan Yazıcı, Mr İsmail Mehmet Yazıcı and Ms Ayşe Yazıcı, are fifteen Turkish nationals. They were born in 1940, 1950, 1932, 1945, 1980, 1948, 1943, 1952, 1954, 1956, 1947, 1943, 1934, 1967 and 1968 respectively. They were represented before the Court by Ms Bahar Argın, a lawyer practising in Istanbul.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. A plot of land in Avcılar, in the Merkez District of Istanbul, was registered in the land register as plot no. 23, parcel no. 4354, in the name of Maksut Paksoy and Ömer Paksoy, the applicants’ predecessors.
4. In 1978, the plot of land in question was designated as a primary school area in the local land development plan. The designation of the plot of land remained unchanged in subsequent plans drawn up between 1978 and 2007.
5. On 26 March 2007 the applicants applied to the municipality to have the local land development plan altered. On 8 October 2007 the municipality rejected the applicants’ request.
6. On 3 January 2008 the applicants instituted proceedings before the Istanbul Administrative Court seeking to have the local land development plan annulled. On 15 January 2008 the Istanbul Administrative Court dismissed the applicants’ case.
7. On 11 March 2008 the applicants instituted another set of proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for the decrease in the market value of the land and the long-term uncertainty about the fate of the land. On 16 July 2008 the court dismissed the case, holding that the authorities had not seized the land in question. An appeal and a request for rectification lodged by the applicants were subsequently rejected by the Court of Cassation, and the decision became final on 15 October 2009.
B. Relevant domestic law
1. Local land development plans
8. According to section 3 of the Zoning Act (Law no. 3194), land cannot be used for any purpose other than that indicated in the local land development plans.
9. Section 10(1) of the same Act provides that the municipalities should prepare their five-year zoning programmes within three months of the entry into force of local land development plans. Land which falls within those programmes and which is accordingly assigned to the relevant public administrative authorities should be expropriated during the period in question. A description of the relevant domestic law may be found in Hüseyin Kaplan v. Turkey (no. 24508/09, §§ 25 and 26, 1 October 2013).
2. Compensation Commission established by Law no. 6384 of 19 January 2013 and the decree of 16 March 2014
10. The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purpose. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
11. The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).
3. Decree of 9 March 2016
12. The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.
13. The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows:
Article 4
“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;
b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area;
c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;
d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;
e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”
COMPLAINT
14. The applicants complained, under Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, that as a result of the restrictions imposed on their land, their right to peaceful enjoyment of their possessions had been breached.
THE LAW
15. Relying on several provisions of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complain of the restrictions imposed on their land.
16. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). In the present case, it considers that the complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
17. The Court has already examined similar applications and found a violation of the above-mentioned provision because of the excessive burden that the applicants had to bear (see Hakan Arı v. Turkey, no. 13331/07, §§ 33-47, 11 January 2011, and Hüseyin Kaplan, no. 24508/09, §§ 34-48, 1 October 2013).
18. The Court reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus exempting States from answering before the European Court for their acts. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Aydemir and Others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010).
19. The Court observes that following the pilot judgment procedure applied in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), on 9 January 2013 the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non‑enforcement or delayed enforcement of judicial decisions. (see Turgut and Others v. Turkey (dec.), no. 4860/09, §§ 19-26 and 47-60, 26 March 2013).
20. The competence of the Compensation Commission was subsequently extended by the decrees of 16 March 2014 and 9 March 2016.
21. The Court has declared inadmissible for non-exhaustion of domestic remedies the category of repetitive applications covered by the Decree of 16 March 2014 (see Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9‑17, 27 May 2014 concerning expropriation-related issues, and Bozkurt v. Turkey (dec.), no. 38674/07, §§ 12-21, 10 March 2015 concerning the restrictions on detainees’ use of non-official languages).
22. The Decree of 9 March 2016 has further extended the competence ratione materiae of the Compensation Commission, which now has the competence to examine complaints concerning alleged breaches of the right to peaceful enjoyment of possessions on account of applicants’ inability to use their land as a result of restrictions imposed by the local land development plans (see paragraphs 12 and 13 above).
23. The Compensation Commission is therefore empowered to award compensation to such applicants, in line with the Court’s practice. The compensation awarded by the Compensation Commission will be paid by the Ministry of Justice within three months of the decision becoming final and will be exempt from any tax or charges. An appeal can be lodged against the Compensation Commission’s decision with the Regional Administrative Court, which should decide on the case within three months. The applicant may also lodge an individual application with the Constitutional Court against the decision of the Regional Administrative Court (see Ahmet Erol v. Turkey (dec.), no. 73290/13, 6 May 2014).
24. The Court notes that should the compensation granted at domestic level be insufficient in comparison with amounts awarded by the Court in similar cases, it would be open to the applicants to claim that they were still a “victim” within the meaning of Article 34 of the Convention and to lodge a fresh application with the Court.
25. In the light of the above considerations, the Court concludes that the applicants should seek redress for their Convention complaint by using the new remedy under Law no. 6384.
26. It follows that the application should be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 30 June 2016.
Stanley NaismithJulia Laffranque
RegistrarPresident
Full & Egal Universal Law Academy