SECOND SECTION
DECISION
Application no. 44188/04
Ahmet TÜRK and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 November 2016 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 November 2004,
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, Mr Ahmet Türk, Mr Mehmet Türk and Ms Latife Türk are three Turkish nationals. They were born in 1964, 1955 and 1932 respectively and were represented before the Court by Mr and Ms Küçüköner, lawyers practising in Mersin.
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. The applicants had a plot of land in the Tarsus District of Mersin, which had been registered in the land register as plot no. 281, parcel no. 11.
5. On 23 October 2001 the Tarsus Municipality (“the Municipality”) decided to expropriate the applicants’ land. Subsequently, on 31 December 2001, the Municipality applied to the Tarsus Civil Court of First Instance to have the amount of the expropriation compensation fixed and to have the Municipality registered as the owner of the land in the land registry.
6. On 28 January 2002 the applicants submitted a petition to the Tarsus Civil Court of First Instance and requested that an interest be applied to the compensation award.
7. On 27 February 2002 the Tarsus Civil Court of First Instance ordered an expert examination to determine the market value of the applicants’ land. Following an examination conducted on 5 March 2002, the experts submitted their report indicating that the value of the land was 28,964,286,000 Turkish liras (TRL).
8. Following the decision of the Tarsus Civil Court of First Instance dated 30 April 2002, on 10 May 2002, the Municipality paid the impugned amount into a bank account opened on behalf of the applicants.
9. On 16 May 2002 the Tarsus Civil Court of First Instance ordered that the applicants’ land be registered in the name of the Municipality and that the amount of the expropriation compensation be held in a long-term savings account until the date of actual payment. Because the bank was not notified of the Tarsus Civil Court of First Instance’s judgment of 16 May 2002, the amount of the expropriation compensation was not transferred to a long-term savings account.
10. The applicant did not appeal against the judgment given by the Tarsus Civil Court of First Instance.
11. Upon the appeal lodged by the Municipality, on 26 November 2002, the Court of Cassation quashed the judgment rendered by the Tarsus Civil Court of First Instance on 16 May 2002.
12. On 5 February 2003 the applicants submitted a new petition and asked the Tarsus Civil Court of First Instance to apply default interest to the compensation award.
13. The Tarsus Civil Court of First Instance reassessed the value of the land and on 30 September 2003 it ordered that the amount of TRL 27,107,601,000 should be paid to the applicants as expropriation compensation. In its judgment, the Tarsus Civil Court of First Instance did not reply to the applicants’ submission regarding the application of interest to the compensation award.
14. On 12 November 2003 and 3 December 2003 the applicants were paid the full compensation.
15. On 12 November 2003 the applicants lodged an appeal against the Tarsus Civil Court of First Instance’s judgment of 30 September 2003, arguing that the non-application of default interest to expropriation compensation was contrary to law.
16. On 26 January 2004 the Court of Cassation upheld the judgment. The applicants’ request for rectification was subsequently rejected by the Court of Cassation and the judgment became final on 10 May 2004. The final decision was served on the applicants’ representative on 31 May 2004.
B. Relevant domestic law and practice
17. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 23) 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
18. The applicants complained of violations of their right to a fair trial under Article 6 § 1 of the Convention on account of both the length and the fairness of the domestic proceedings.
19. Relying on Article 1 of Protocol No. 1 to the Convention the applicants complained about the depreciation of the expropriation compensation and non-application of default interest to the expropriation compensation.
20. The applicants further argued under Article 1 of Protocol No. 1 to the Convention that the compensation award had not been paid to them immediately after the delivery of the Tarsus Civil Court of First Instance’s judgment of 16 May 2002.
THE LAW
A. Alleged violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention
21. The applicants complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
22. The applicants further alleged under Article 1 of Protocol No. 1 to the Convention that due to the length of domestic proceedings, the delayed payment of the compensation award and the high inflation rates in Turkey the amount of the expropriation compensation had been depreciated and that the domestic courts had failed to compensate their loss by not applying interest.
23. The Government noted that pursuant to Law no. 6384 a new 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. 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.
24. 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 Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 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 length of proceedings and the depreciation of awards in expropriation cases.
25. 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.
26. 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 cases of Turgut and Others and Yıldız and Yanak, cited above.
27. In view of the above, the Court concludes that the applicants’ complaints regarding the length of domestic proceedings and the depreciation of the expropriation compensation should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Other Alleged Violations of the Convention
28. The applicants complained of other violations of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention. In this regard, they complained that one of the experts could not be considered as impartial. They also complained that the Municipality did not pay the compensation award immediately after the delivery of the judgment of 16 May 2002.
29. The Court observes that the applicants did not raise their complaint regarding the impartiality of one of the experts before the domestic courts. It also notes that the applicants did not appeal against the judgment of 16 May 2002 which ordered that the expropriation compensation be held in a long-term savings account, under the normal appeal procedure.
30. The Court therefore concludes that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares inadmissible the application.
Done in English and notified in writing on 15 December 2016.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy