SECOND SECTION
DECISION
Application no. 34686/07
Ayşe USTA and Hüseyin BAYRAKTAR
against Turkey
The European Court of Human Rights (Second Section), sitting on 25 April 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 application lodged on 17 August 2007,
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, Ms Ayşe Usta and Mr Hüseyin Bayraktar, are Turkish nationals, who were born in 1951 and 1956 and live in Yalova and Trabzon respectively. They were represented before the Court by Mr M. Temel, a lawyer practising in Istanbul.
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 were shareholders of a plot of land in Çınarcık Koruköy village of Yalova which had been registered in the land register as plot no. 10, parcel no. 736.
5. On an unspecified date, the Directorate of Roads and Highways (“the directorate”) expropriated the land and paid 6,577,505 Turkish liras (TRL) as compensation.
6. On 28 July 2000 the applicants brought an action before the Yalova Civil Court of First Instance and asked for additional compensation.
7. On 23 August 2004 the Yalova Civil Court of First Instance awarded a sum of TRL 33,609,359,016 (approximately 18,400 euros (EUR) on that date), plus interest.
8. On 7 February 2005 the Court of Cassation upheld the first instance court’s decision with a correction on the starting date of the interest.
9. On 8 July 2005 the applicants initiated execution proceedings before the Kadıköy Execution Office.
10. According to the information in the case file, the directorate made the payment of the amount in three installments and the last payment was made on 21 July 2007.
B. Relevant domestic law
11. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraphs 15-16) 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
12. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the compensation they had been awarded for the expropriation of their land had depreciated considerably in value owing to the prolonged procedure and failure of the national authorities to comply with the domestic court judgment for a long period of time.
13. Furthermore, invoking Article 13 of the Convention, the applicants alleged that there was no effective remedy in domestic law by which they could compel the administration to honour its debt.
THE LAW
A. Complaint regarding the alleged financial loss suffered by the applicants
14. Invoking Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained that the excessive length of the domestic proceedings and the delay in the payment of the additional compensation awards, coupled with the low interest rates, had caused them substantial financial loss.
15. The Government noted that pursuant to Law No. 6384 of January 2013 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.
16. 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.
17. 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.
18. However, taking into account the Government’s 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.
19. In view of the above, the Court concludes that this part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. As to Article 13 of the Convention
20. Relying on Article 13 of the Convention, the applicants also complained that there was no effective remedy under Turkish law to compel the administration to honour its debt.
21. 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 of the Convention and Article 1 of Protocol No. 1 to the Convention (see Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013, §§ 59-60).
22. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with 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 18 May 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy