SECOND SECTION
DECISION
Application no. 32686/09
Sadiye ULUDAĞ and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 23 January 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2009,
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 and live in Mersin. Their names and birth dates appear in the appendix.
2. The applicants were represented by Mr A. Aktay, a lawyer practising in Mersin. 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 owned five plots of land in Yalınayak Village, in the Merkez District of Mersin, which had been registered in the land registry as plot no. 23-p and parcel nos. 48/1, 49/1, 50/2, 108/2, 109/1.
5. In 1998 the General Directorate of National Roads and Highways (Karayolları Genel Müdürlüğü, hereinafter referred to as “the Directorate”) started using the applicants’ plots of land for the construction of a road.
6. On 18 March 2005 the applicants brought an action before the Mersin Civil Court of First Instance against the Directorate and requested compensation for de facto expropriation of their land.
7. On 1 February 2006 the Mersin Civil Court of First Instance awarded the applicants an amount of 991,812.61 Turkish liras (TRY) with statutory rate of default interest.
8. On 14 November 2006 the Court of Cassation upheld the judgment. On 1 March 2007 the Directorate’s rectification request was rejected by the Court of Cassation and the judgment became final. Following the proceedings before the Court of Cassation, the case file was deposited with the Mersin Civil Court of First Instance’s registry on 15 March 2007.
9. In the meantime, on 20 December 2006 the applicants submitted the copy of the judgment delivered by the Mersin Civil Court of First Instance to the Mersin Enforcement Office and initiated enforcement proceedings. They also asked the enforcement office to apply the maximum interest rate to their compensation award pursuant to Article 46 of the Constitution.
10. On 30 December 2008 the Directorate paid a part of the compensation award, together with the statutory rate of default interest.
B. Relevant domestic law and practice
11. 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.”
12. 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 money debt. The same section further prescribes that the amount of money determined by the court judgment shall be specified in the enforcement order.
COMPLAINT
13. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained that the failure of the domestic courts to apply the highest interest rate as prescribed in Article 46 of the Constitution for the de facto expropriation of their land had breached their rights to a fair trial and to peaceful enjoyment of possessions. They alleged, in particular, that this practice had led to a reduction in the due compensation amount.
THE LAW
14. 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 a significant pecuniary loss. They invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in this respect.
15. The Government contested that argument.
16. 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 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).
17. In the present case, the applicants complained about the low interest rate applied to their compensation award. The Court observes that the Mersin Civil Court of First Instance determined the interest rate applicable to the applicants’ compensation award for de facto expropriation of their property by a judgment of 1 February 2006 and the applicants’ appeal against this judgment was rejected on 14 November 2006. The Court therefore concludes that the final decision regarding the applicants’ complaint was that of the Court of Cassation delivered on 14 November 2006 (see, mutadis mutandis, Sarıca and Dilaver v. Turkey, no. 11765/05, §§ 31-32, 27 May 2010). The Court further notes that the applicants must have been aware of the final decision at the latest on 15 March 2007, when the case file was deposited with the first instance court’s registry. However, the present application was lodged with the Court on 16 March 2009, more than six months from that date (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).
18. In view of the above, the Court concludes that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 February 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Appendix
Sadiye ULUDAĞ who was born in 1936 Cennet AĞCA Şenay ALTINBULDUK Ahmet Ersin BİLGİN who was born in 1962 Arif BİLGİN who was born in 1968 Ekrem Murat BİLGİN who was born in 1972 Erdal BİLGİN who was born in 1956 Ergun BİLGİN who was born in 1954 Gulsen BİLGİN who was born in 1941Hatice Cumhuriye BİLGİN who was born in 1954Münire BİLGİN who was born in 1939Nülüfer BİLGİN who was born in 1941Ömer BİLGİN who was born in 1966Saadet BİLGİN who was born in 1982Saadet Neriman BİLGİN who was born in 1928Tamer BİLGİN who was born in 1966Vecıde BOZ who was born in 1966Turhan BUDAKHabibe CANER who was born in 1963Sıdıka ÇİFTÇİOĞLU who was born in 1961Aynur DAYICIK who was born in 1971Bilal DEMİRSOYİsmail DEMİRSOYFahrettın DEMİRSOY who was born in 1980Yahya DEMİRSOY who was born in 1982Yıldız DEMİRSOY who was born in 1954Fatma DOĞAN who was born in 1962Musbah DOĞAN who was born in 1960Rüştü DOĞAN who was born in 1933Sıtkı DOĞAN who was born in 1968Veysel DOĞAN who was born in 1942Yaşar DOĞANAysen DOĞULU who was born in 1961Nezahat EBİK who was born in 1947Sultan ER who was born in 1965Fadiye ERKAN who was born in 1969Hamza EROĞLUHanifi EROĞLUİsmet EROĞLUİbrahim EROL who was born in 1946Meliha ERSOYArif GEÇİTLİ who was born in 1954Eyup GEÇİTLİ who was born in 1966Mehmet Ali GEÇİTLİ who was born in 1928Mustafa GEÇİTLİ who was born in 1959Nazmiye GENÇ who was born in 1942Nebahat GENÇ who was born in 1950Özdemir GENÇ who was born in 1941Coşkun GÖLCÜK who was born in 1944Funda GÖNEN who was born in 1965Enise GÜCER who was born in 1940Alahittin GÜMRAL who was born in 1951Celalettin GÜMRAL who was born in 1942Elif GÜMRALÖzgül GÜNEYNazife HAZAR who was born in 1962Pervin KALINLI who was born in 1965Hafize OFLAZŞefıka ONGUN who was born in 1933Perihan ÖZ who was born in 1976Nurgül ÖZKAN who was born in 1968Nurten ÖZKAN who was born in 1940Figen ÖZYALÇIN who was born in 1965Mediha ÖZYURT who was born in 1962Nazife ŞEN who was born in 1973Ayşe ŞİMŞEK who was born in 1965Meral SÜZEN who was born in 1953Taibe TAŞÇI who was born in 1948Gülşen TOZANHuru TUNA who was born in 1955Berin ULUDAĞ who was born in 1963Halil ULUDAĞ who was born in 1956Hasan ULUDAĞ who was born in 1960Hikmet ULUDAĞ who was born in 1966İsmet ULUDAĞ who was born in 1959Muhammet ULUDAĞNail ULUDAĞ who was born in 1949Servet ULUDAĞ who was born in 1965Yücel ULUDAĞ who was born in 1973Elife ULUDAĞ who was born in 1929Fatma ULUDAĞ who was born in 1922Raziye ULUDAĞ who was born in 1933Süleyman ULUDAĞ who was born in 1959Suzan USLU who was born in 1961Ayşe UZUN who was born in 1945Behzat UZUNHatice UZUN who was born in 1969Mustafa UZUNNecdet UZUN who was born in 1957Turhan UZUN who was born in 1956Mehmet YAMAÇ who was born in 1969Melis Ladin YAMAÇ who was born in 1995Şeref Ardıç YAMAÇ who was born in 1995Ayşe YILDIZ who was born in 1969Ahmet Sami YILMAZ who was born in 1962Ali Yaşar YILMAZ who was born in 1960Aysel YILMAZFatma YILMAZŞahin YILMAZ Saniye YILMAZ who was born in 1939 Zeki YILMAZ Abdurrahman ZEREN who was born in 1956 Ali Atilla ZEREN who was born in 1955 Aysun ZEREN who was born in 1969 Şaban ZEREN who was born in 1973
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