SECOND SECTION
DECISION
Application no. 15661/07
Mehmet Yılmaz SAVAŞÇIN 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 29 March 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Mehmet Yılmaz Savaşçın, Ms Ayşe Şayan Ataklı, Ms Yılma Savaşçın and Ms Solmaz Gülper Refiğ, are four Turkish nationals. They were born in 1941, 1948, 1938 and 1943 respectively. They were represented before the Court by Ms Fatma Belgin Adalı, a lawyer practising in Izmir.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In 1976 the applicants purchased a plot of land measuring 7,860 sq. m in Foça, in the Yenifoça Salhan District of Izmir, which had been registered in the land register as parcel no. 2066.
4. On 30 November 1999, following a claim submitted by the forest administration, the Foça Civil Court of First Instance ordered that the applicants’ title deed be annulled and the land entered in the land register as belonging to the Treasury, holding that the land was part of the public forest. 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 4 February 2002.
5. On 14 June 2002 the applicants brought a case before the Foça Civil Court of First Instance. They sought compensation for pecuniary damage from the Treasury under Article 917 of the old Civil Code, which prescribed that the State was responsible for any damage resulting from the keeping of the land registry records.
6. On 21 December 2004 the Foça Civil Court of First Instance dismissed the applicants’ compensation claim. The Court of Cassation rejected an appeal and a request for rectification lodged by the applicants, and the decision became final on 31 October 2006.
B. Relevant domestic law and practice
1. Designation of land as public forest
7. Under Article 169 of the Turkish Constitution of 1982, ownership of public forests may not be transferred to others; public forests will be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may forests be subject to any easement, unless it is considered to be in the public interest.
8. Under section 7 of Law no. 6831 of 31 August 1956, the cadastral commissions decide whether an area will be categorized as a public forest or a private forest. The same law governs the way in which the cadastral commissions operate (sections 7 to 12).
9. A full description of the relevant domestic law and practice regarding the designation of land as public forest may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-67, 8 July 2008).
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 purposes. 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.”
COMPLAINTS
14. Invoking Article 1 of Protocol No. 1 to the Convention, the applicants complained of interference by the authorities with their right to property. Relying on Article 6 of the Convention, they further complained of a violation of the right to a fair trial, as the decision of the Court of Cassation had lacked reasoning.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
15. The applicants complained, under Article 1 of Protocol No. 1 to the Convention, that the annulment of their title deed without any compensation constituted a disproportionate burden and thus breached their right to the peaceful enjoyment of their possessions.
16. Article 1 of Protocol No. 1 to the Convention reads:
“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 a similar application and found a violation of Article 1 of Protocol No. 1 because a fair balance had not been struck between the demands of the general interest of the community and the requirement to protect individual rights (see Turgut and Others v. Turkey, no. 1411/03, §§ 86-93, 8 July 2008).
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 categories 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 the annulment of applicants’ title deeds where the land at issue is classified as part of the public forest (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 this part of the application should be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Other alleged violations of the Convention
27. The applicants complained under Article 6 of the Convention that the domestic proceedings had been unfair. They also alleged that the Court of Cassation’s decisions had lacked sufficient reasoning.
28. The Court observes that the applicants did not provide further details on those complaints. It notes that there is nothing in the case file to suggest that the domestic courts before which adversarial proceedings took place did not meet the requirements of Article 6 of the Convention. Additionally, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, and Helle v. Finland, 19 December 1997, §§ 59-60, Reports of Judgments and Decisions 1997‑VIII).
29. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 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
Declares the application inadmissible.
Done in English and notified in writing on 30 June 2016.
Stanley NaismithJulia Laffranque
RegistrarPresident
Full & Egal Universal Law Academy