SECOND SECTION
DECISION
Application no. 19958/06
PETROL HİZMETLERİ A.Ş.
against Turkey
The European Court of Human Rights (Second Section), sitting on 10 January 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 application lodged on 28 April 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, Petrol Hizmetleri Anonim Şirketi, is a joint-stock company registered in Turkey. It is represented by Mr. C. Mumcu, a lawyer practicing in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In November 2002 the Ankara Metropolitan Municipality commenced expropriation proceedings concerning a plot of land belonging to the applicant company. As no agreement was reached on the amount of compensation for the expropriation, on 28 July 2003 the Municipality brought an action in the Ankara Civil Court of General Jurisdiction, seeking an assessment of the value of the land and the registration of the land in the name of the Municipality.
4. On 20 April 2005 the court, based on expert reports, found it established that the value of the land had amounted to 178,173 Turkish Liras (TRY) (approximately 114,800 Euros (EUR)) at the time when the proceedings had been initiated. The court accordingly directed that that sum together with a default interest, running from the litigation date, had to be paid to the applicant company. It further decided that the title to the land had to be transferred to the Municipality.
5. On 24 October 2005 the Court of Cassation essentially upheld the judgment given by the first-instance court. It however amended it and ordered that no interest should be applied to the amount of compensation awarded for expropriation.
B. Relevant domestic law and practice
6. A description of the domestic law regarding the new remedy introduced by Law no. 6384 (see paragraph 9) may be found in Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013; Demiroğlu v. Turkey (dec.), no. 56125/10, 4 June 2013; and Yıldız and Yanak v. Turkey (dec.), no. 44013/07, 27 May 2014.
COMPLAINTS
7. Relying on Article 1 of Protocol No. 1, the applicant company complained that the amount of compensation awarded for expropriation had depreciated considerably due to lapse of time and the failure of the domestic courts to apply any default interest to the compensation amount. The applicant company also maintained that the domestic courts erred in the calculation of the compensation award.
THE LAW
A. Complaint regarding the alleged financial loss suffered by the applicant
8. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant company complained about its financial loss caused by the late payment of the expropriation amount and the lack of interest rate.
9. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by a decree adopted on 16 March 2014 to include complaints relating to, among other things, the alleged loss of value of the amount of the expropriation compensation due to the effects of inflation and the length of the proceedings. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
10. 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 Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), 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 depreciation of awards in expropriation cases.
11. 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.
12. 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 Yıldız and Yanak, cited above.
13. 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. Remaining complaint
14. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant further maintained that the amount awarded by the domestic courts had been inadequate.
15. 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 this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
16. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with the Article 35 § 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 February 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy