SECOND SECTION
DECISION
Application no. 13336/09
Yılmaz ŞENLİK against Turkey
and 5 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Turkish nationals. Their names, birth dates, and places of residence appear in the appendix.
2. The applicants were represented by Ms D. Eser, a lawyer practising in İzmir. 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. The applicants were the owners of different plots of land. On various dates between 1988 and 1994, the General Directorate of National Roads and Highways (Karayolları Genel Müdürlüğü, hereinafter referred to as “the Directorate”) decided to expropriate the lands in dispute. However the applicants were not officially notified of the expropriation decisions.
5. On different dates between 1993 and 1999, the Directorate started using the plots of land for construction of roads.
6. From 22 April 2005 onwards, the applicants brought actions before the civil courts against the Directorate and sought compensation for de facto expropriation of their land.
7. On various dates between 2005 and 2007, the first-instance courts held hearings, with the attendance of the applicants’ representative, and awarded the applicants compensation, plus interest at the statutory rate. The applicants did not file an appeal against the judgments. The Directorate however appealed. The Court of Cassation upheld the judgments and subsequently rejected the Directorate’s requests for rectification. The judgments thus became final on various dates between 2006 and 2008.
8. Following the notification of final decisions delivered by the first‑instance courts, the applicants submitted copies of those decisions to the Izmir Enforcement Office and initiated enforcement proceedings.
9. On various dates between 19 March 2009 and 13 January 2010, the Directorate paid the compensation awards in full, together with statutory interest.
10. The details of the applications are set out in the attached table.
B. Relevant domestic law and practice
11. A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 20 below) may be found in Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013).
12. The relevant parts of Article 46 of the Constitution, as amended on 3 October 2001, read as follows:
“Article 46:
...
The compensation for expropriation and the amount regarding its increase rendered by a final judgment shall be paid in cash and in advance. ...
...
An interest equivalent to the highest interest paid on public claims shall apply to the ... expropriation compensations which have not been paid for any reason.”
13. Section 32(1) of the Enforcement and Bankruptcy Act (Law no. 2004) provides that the enforcement office will issue an enforcement order to the debtor following the submission of a court judgment concerning any monetary debt. The same section further prescribes that the amount of money determined by the court judgment shall be specified in the enforcement order.
COMPLAINTS
14. Relying on Article 1 of the Protocol No. 1 to the Convention, the applicants complained about the delay in the payment of the compensation for de facto expropriation of their land.
15. The applicants complained under Article 1 of the Protocol No. 1 to the Convention that the domestic courts’ failure to apply the maximum interest rate applicable to public debts, as defined in Article 46 of the Constitution, had breached their rights to the peaceful enjoyment of their possessions.
16. The applicants complained of a violation of Article 13 of the Convention on account of the lack of any effective remedy in respect of their complaint concerning the non-payment of their compensation awards.
17. The applicants further complained under Article 1 of Protocol No. 1 to the Convention that the compensation amounts awarded by the domestic courts had been lower than the market value of their de facto expropriated plots of land.
THE LAW
18. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
A. As to Article 1 of Protocol No. 1 to the Convention (delayed execution of the judgment)
19. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the authorities delayed paying them the compensation amounts awarded by the domestic courts.
20. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings, the delayed execution of judgments and the non-execution of judgments. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.
21. The Court observes that, as pointed out by the Government, a 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 Demiroğlu and Others v. Turkey ((dec.), no. 56125/10, 4 June 2013), the Court declared the 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 failure of the authorities to enforce judicial decisions.
22. The Court notes that in its judgment 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.
23. However, taking into account the Government’s preliminary 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 case of Demiroğlu, cited above.
24. 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.
B. As to Article 1 of Protocol No. 1 to the Convention (non-application of maximum interest rate to the compensation awards)
25. The applicants complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation awards for their de facto expropriated plots of land had caused them significant pecuniary loss. They invoked Article 1 of Protocol No. 1 to the Convention in this respect.
26. The Government contested that argument.
27. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies. It is not open to the Court to set aside the application of the six-month rule even in the absence of a relevant objection from the Government (see Belaousof and Others v. Greece, no. 66296/01, § 38, 27 May 2004; Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008; and Toner v. the United Kingdom (dec.), no. 8195/08, 15 February 2011).
28. In the present cases, the applicants complained about the low interest rate applied to their compensation awards. The interest rate applicable to the applicants’ compensation awards for de facto expropriation of their property was determined by the judgments of the first-instance courts between 2005 and 2007, and none of the applicants filed an appeal against these judgments before the Court of Cassation. Accordingly, the final decisions regarding the applicants’ complaint were the judgments of the first-instance courts, the details of which appear in the appendix. (see, mutadis mutandis, Sarıca and Dilaver v. Turkey, no. 11765/05, §§ 31-32, 27 May 2010). In the Court’s opinion, the applicants must have been aware of the final decisions on the dates of delivery of those judgments, given the fact that the first-instance courts announced their judgments in the presence of the applicants’ representative on the same date. However, the present applications were lodged with the Court on different dates in 2009 (see the appendix), more than six months from those dates (see Şat v. Turkey, no. 34993/05, §§ 16‑18, 14 June 2011, and Gerçek and Others v. Turkey, no. 54223/08, §§ 16-18, 13 December 2011).
29. In view of the above, the Court concludes that this part of the applications has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
C. As to Article 13 of the Convention
30. The applicants, relying on Article 13 of the Convention, also complained that there was no effective remedy under Turkish law to compel the administration to execute the court judgments and to enforce its debts.
31. The Government argued that there were effective remedies at the applicants’ disposal in domestic law for their complaint regarding the delayed enforcement of the judgment. They therefore invited the Court to find no violation of Article 13 of the Convention in the present cases.
32. The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicants within the meaning of Article 13 of the Convention to complain about the non-execution of domestic court decisions for the purposes of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (see Turgut and Others, ((dec.), no. 4860/09, §§ 59-60, 26 March 2013).
33. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Other Complaint
34. Invoking Article 1 of Protocol No. 1 to the Convention, the applicants further complained that the compensation awards determined by the domestic courts had been much lower than the market value of their de facto expropriated plots of land.
35. 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 this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares inadmissible the applications.
Done in English and notified in writing on 18 January 2018.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
APPENDIX
Application no. and the date of introduction
Applicant’s name, date of birth and place of residence
Name of the first-instance court, date and no. of its decision
Date and no. of the Court of Cassation decision (delivered following the Directorate’s appeal/rectification request)
Date of actual payment
13336/09
Şenlik
10/02/2009
Yılmaz Şenlik
09/04/1959
Çanakkale
Karşıyaka Civil Court of First Instance
31/10/2007
E:2006/289
K:2007/313
07/07/2008
E:2008/8538
K:2008/9358
11/01/2010
17901/09
Ergül
13/03/2009
Ümit Ergül
21/05/1948
Etem Ergül
05/01/1954
Müfit Ergül
22/02/1960
Volkan Ergül
14/07/1986
Funda Ergül
29/03/1993
İzmir Civil Court of First Instance
12/12/2005
E:2005/393
K:2005/423
02/11/2006
E:2006/8465
K:2006/11453
19/03/2009
17907/09
Yıldır
13/03/2009
İhsan Yıldır
1933
İzmir
İzmir Civil Court of First Instance
20/02/2006
E:2005/302
K:2006/59
15/02/2007
E;2006/13597
K:2007/1706
24/03/2009
18977/09
Elgay
27/03/2009
Cengiz Elgay
04/03/1946
İzmir
Karşıyaka Civil Court of First Instance
28/06/2007
E:2006/312
K:2007/201
21/04/2008
E:2008/3366
K:2008/5196
31/12/2009
18978/09
Özalp and Bölükbaş
27/03/2009
Güler Özalp
07/11/1964
Kuşadası
Duran Bölükbaş
03/07/1941
Marmaris
İzmir Civil Court of First Instance
17/07/2007
E:2007/44
K:2007/304
26/05/2008
E:2008/6167
K:2008/6903
06/01/2010
23496/09
Baykal and Others
02/04/2009
Erdoğan Baykal
15/02/1935
Doğan Baykal
30/04/1960
Seçil Karakuş
18/03/1974
Serpil Şenlik
1963
İzmir Civil Court of First Instance
17/07/2007
E:2006/390
K:2007/301
03/04/2008
E:2008/2370
K:2008/4194
13/01/2010
Full & Egal Universal Law Academy