SECOND SECTION
DECISION
Application no. 17594/08
SARCAN and CAN against Turkey
and 5 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 7 February 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 deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. Before the Court, they are represented by Mr A. Çağer, a lawyer practising in Diyarbakır.
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. On 3 August 1990 the administration expropriated plots of land belonging to the applicants. Following the applicants’ request, the Birecik Civil Court of First Instance awarded additional compensation to them. These judgments were upheld by the Court of Cassation.
5. The applicants initiated enforcement proceedings.
6. According to the information in the case files, the administration has still not paid the full amounts.
7. The details of the applications may be found in the attached table.
B. Relevant domestic law
8. A description of the domestic law and practice with respect to the Compensation Commission mentioned below may be found in Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013; Demiroğlu and Others v. Turkey (dec.), no. 56125/10, 4 June 2013; and Yıldız and Yanak v. Turkey (dec.), no. 44013/07, 27 May 2014.
COMPLAINTS
9. Relying on Article 6 and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the financial loss they had suffered as a result of late payment of the expropriation amounts. In this connection, they further complained that the expropriation proceedings in question had not been concluded within a reasonable time and the domestic court decisions had not been fully enforced.
10. The applicants also stated under Article 6 of the Convention that the judgment of the Birecik Civil Court of First Instance lacked sufficient reasoning.
11. The applicants further complained under Article 2 of Protocol No. 7 to the Convention that there had been no review mechanism.
THE LAW
12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
A. As regards the application lodged by Mr Müslüm Sarcan (Application no. 17954/08)
13. The Court notes that one of the applicants in application no. 17954/08, namely Mr Müslüm Sarcan, had died on 7 May 2003 prior to the introduction of the present application with the Court. In this connection, the Court points out that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Macedonia Gavrielidou and Others v. Cyprus (dec.), no. 73802/01, 13 November 2003).
14. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and must be rejected in accordance with Article 35 § 4.
B. As to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention
15. Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the substantial delay in the enforcement proceedings and financial loss they had suffered as a result.
16. 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 examine 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.
17. 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 decisions in the cases of Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013) and Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014), the Court declared the applications 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 delay in enforcement proceedings and depreciation of awards in expropriation cases.
18. 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.
19. However, taking into account the Government’s supplementary 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 cases of Demiroğlu and Others and Yıldız and Yanak, cited above.
20. 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.
C. Remaining Complaints
21. The applicants alleged that the judgment of the first instance court lacked reasoning and that there had been no review mechanism. In this respect, they relied on Article 6 of the Convention and Article 2 of Protocol No. 7.
22. 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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the application are manifestly ill-founded and must be rejected in accordance with the 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 2 March 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Case specific details
17594/08
08/04/2008
Salih SARCAN
03/05/1945
Germany
German
Müslüm Sarcan
01/01/1950
Şanlıurfa
Turkish
Cuma Sarcan
01/02/1957
Mersin
Turkish
İslim Can
05/03/1955
Mersin
Turkish
Plot no. 10
Birecik Civil Court of First Instance
28 September 2000
2000/945E
2000/2923K
34446/08
08/04/2008
Hamide DEMİR
01/01/1937
Şanlıurfa
Turkish
Ahmet Demir
04/01/1953
Denmark
Danish
Salih Demir
01/01/1956
Denmark
Danish
Zeliha Tarhan
04/12/1958
Şanlıurfa
Turkish
Muhammed Demir
26/06/1970
Germany
Turkish
Emine Demir
02/06/1960
Denmark
Turkish
Fatma Demir
15/03/1962
Şanlıurfa
Turkish
Mehmet Emin Demir
05/03/1964
Şanlıurfa
Turkish
Rahime Demir
08/11/1971
Germany
Turkish
Abdulkerim Demir
01/04/1976
Şanlıurfa
Turkish
Plot no. 1687
Birecik Civil Court of First Instance
24 October 2000
2000/1280E
2000/3408K
34447/08
08/04/2008
Hamide DEMIR
01/01/1937
Şanlıurfa
Turkish
Ahmet Demir
04/01/1953
Denmark
Danish
Salih Demir
01/01/1956
Denmark
Danish
Zeliha Tarhan
04/12/1958
Şanlıurfa
Turkish
Muhammed Demir
26/06/1970
Germany
Turkish
Emine Demir
02/06/1960
Denmark
Turkish
Fatma Demir
15/03/1962
Şanlıurfa
Turkish
Mehmet Emin Demir
05/03/1964
Şanlıurfa
Turkish
Rahime Demir
08/11/1971
Germany
Turkish
Abdulkerim Demir
01/04/1976
Şanlıurfa
Turkish
Plot no. 1698
Birecik Civil Court of First Instance
24 October 2000
2000/1207E
2000/3407K
34454/08
08/04/2008
Fatma ÖZER
18/08/1970
Gaziantep
Turkish
Ayşe Özer
10/05/1989
Gaziantep
Turkish
Ahmet Özer
04/01/1965
Sanliurfa
Turkish
Beşire Özer
15/04/1979
Sanliurfa
Turkish
Fatma Yılmaz
20/09/1958
Sanliurfa
Turkish
Gazal Özer
05/01/1974
Sanliurfa
Turkish
Gülizar Derin
10/08/1976
Gaziantep
Turkish
Hanım Özer
14/11/1968
Sanliurfa
Turkish
Hasan Özer
01/03/1987
Gaziantep
Turkish
İsmail Özer
15/06/1977
Şanliurfa
Turkish
Kadir Özer
17/03/1977
Şanliurfa
Turkish
Medine Özer
01/09/1981
Şanliurfa
Turkish
Mehmet Özer
30/11/1972
Germany
Turkish
Mehmet Özer
01/01/1928
Şanliurfa
Turkish
Melihat Özer
06/04/1951
Şanliurfa
Turkish
Nurten Özer
17/03/1973
Şanliurfa
Turkish
Ülger Şenlik
06/03/1963
Gaziantep
Turkish
Rabia Deniz
17/03/1975
Şanliurfa
Turkish
Reşit Özer
01/10/1969
Şanliurfa
Turkish
Saliha Özer
10/08/1984
Gaziantep
Turkish
Zeliha Özer
10/07/1959
Şanliurfa
Turkish
Zerife Akbaş
11/01/1956
Şanliurfa
Turkish
Fatma Özer
10/08/1970
Gaziantep
Turkish
Kevey Özer
01/02/1940
Şanliurfa
Turkish
Plot no. 282
Birecik Civil Court of First Instance
26 June 2006
2001/164E
2001/470K
34457/08
08/04/2008
Fatma ÖZER
10/08/1970
Gaziantep
Turkish
Ayşe Özer
10/05/1989
Gaziantep
Turkish
Ahmet Özer
04/01/1965
Şanliurfa
Turkish
Beşire Özer
15/04/1979
Şanliurfa
Turkish
Fatma Yılmaz
20/09/1958
Şanliurfa
Turkish
Gazal Özer
05/01/1974
Şanliurfa
Turkish
Gülizar Derin
10/08/1976
Gaziantep
Turkish
Hanım Özer
14/11/1968
Şanliurfa
Turkish
Hasan Özer
01/03/1987
Gaziantep
Turkish
İsmail Özer
15/06/1977
Şanliurfa
Turkish
Kadir Özer
17/03/1977
Şanliurfa
Turkish
Medine Özer
01/09/1981
Şanliurfa
Turkish
Mehmet Özer
01/01/1928
Şanliurfa
Turkish
Melihat Özer
06/04/1951
Şanliurfa
Turkish
Nurten Özer
17/03/1973
Şanliurfa
Turkish
Ülger Şenlik
06/03/1963
Gaziantep
Turkish
Rabia Deniz
17/03/1975
Şanliurfa
Turkish
Reşit Özer
01/10/1969
Şanliurfa
Turkish
Saliha Özer
10/08/1984
Gaziantep
Turkish
Zeliha Özer
10/07/1959
Şanliurfa
Turkish
Zerife Akbaş
11/01/1956
Şanliurfa
Turkish
Bedir Özer
03/02/1950
Gaziantep
Turkish
Zeynep Özer
20/09/1958
Gaziantep
Turkish
Cuma Özer
12/02/1954
Gaziantep
Turkish
Ali Özer
01/01/1969
Şanliurfa
Turkish
Cemal Özer
01/05/1964
Şanliurfa
Turkish
Ayten Şahin
01/01/1977
Şanliurfa
Turkish
Kevey Özer
01/02/1940
Şanliurfa
Turkish
Bayram Özer
01/01/1976
Şanliurfa
Turkish
Plot no. 453
Birecik Civil Court of First Instance
24 October 2000
2001/467E
2001/563K
34471/08
08/04/2008
Fatma ÇOKKALENDER
22/07/1936
Şanliurfa
Turkish
Emıne Can
12/01/1932
Şanliurfa
Turkish
Aynizeliha Çokkalender
03/04/1954
Şanliurfa
Turkish
Kahraman Çokkalender
01/01/1957
Şanliurfa
Turkish
Müslüm Çokkalender
01/02/1963
Şanliurfa
Turkish
Yüksel Can
02/02/1966
Şanliurfa
Turkish
Abdulkadir Çokkalender
01/01/1973
Şanliurfa
Turkish
Sıdıka Erdıl
05/02/1937
Şanliurfa
Turkish
Keziban Çokkalender
01/01/1974
Şanliurfa
Turkish
Mehmet Çokkalender
02/01/1961
Şanliurfa
Turkish
Ayten Sarıçiçek
03/01/1964
Şanliurfa
Turkish
Zeliha Çokkalender
12/01/1972
Şanliurfa
Turkish
Plot no. 1736
Birecik Civil Court of First Instance
24 October 2000
2000/1233E
2000/3402K
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