AS TO THE ADMISSIBILITY OF
Application No. 23765/94
by Mustafa YESILÇINAR, Yasar YESiLÇINAR, Hanife YESiLÇINAR, Ali
YESiLÇINAR, Yusuf YESiLÇINAR,
Ayse GÖNEN, Fatma GÖNEN
against Turkey
The European Commission of Human Rights (First Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 January 1994
by Mustafa Yesilçinar, Yasar Yesilçinar, Hanife Yesilçinar, Ali
Yesilçinar, Yusuf Yesilçinar, Ayse Gönen and Fatma Gönen and registered
on 28 March 1994 under file No. 23765/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the present case as submitted by the applicants may
be summarised as follows:
A. Particular circumstances of the case
The applicants are all Turkish citizens resident in Beysehir
Konya.
In 1979 the Izmir Municipal Administration expropriated a piece
of land owned by the applicants in order to construct a multi-storied
car park. The administration decided to pay the applicants a
compensation of 1.927.500 Turkish Lira. Subsequently, the applicants
instituted proceedings for the revision of the compensation amount. In
1986 the compensation was increased by a court decision to 2.750.000
Turkish Lira.
On 26 February 1992 the applicants instituted proceedings against
the Izmir Municipal Administration and claimed the recovery of the land
or alternatively, the payment of the difference between the current
value of the land and the readjusted expropriation compensation. The
applicants asserted that the Administration had constructed a business
centre on the expropriated land. The applicants did not contest that
certain parts of the building were reserved for a car park. They,
however, maintained that the Administration had allocated part of the
building to shops and offices and transferred a part of their property
rights to a bank, thereby contravening the purposes of expropriation.
They further stated that since the Administration had not provided them
with payment details of the expropriation compensation, they had not
been able to receive the compensation.
On 8 February 1993 the Izmir Court of First Instance dismissed
the case. The Court concluded that the building constructed by the
Administration, contrary to the applicant's allegations, was a multi-
storied car park. It stated that the ground floor of the car park was
reserved for shops and offices the property rights of which were partly
transferred to a bank that had financed the construction of the
building. The Court found that neither the existence of shops and
offices nor the partial transfer thereof to a bank in accordance with
a contractual obligation of the Administration contravened the purposes
of the expropriation. As regards the payment of the expropriation
compensation, the Court stated that the Administration, in earlier
court proceedings introduced by the applicants, had given the details
of a bank account to which the compensation had been paid. It held that
the applicants' failure to collect the compensation did not give them
the right to institute these proceedings.
The applicants appealed. On 10 May 1993 the Court of Cassation,
upholding the cogency of the Izmir Court of First Instance's reasoning
and the assessment of evidence, dismissed the appeal.
The applicants applied for the rectification of this judgment.
On 9 July 1993 the Court of Cassation dismissed this request. The
applicants' legal representative received this judgment on
4 August 1993.
B. Relevant domestic law and practice
According to Article 23 of the Expropriation Law (Law No. 6830),
if the administration which has expropriated certain immovable property
fails to make the appropriate installations in accordance with the
purposes of the expropriation within five years from the date of the
expropriation, the previous owners may claim the recovery of the
property on the condition that they pay back the compensation for
expropriation.
In accordance with the case-law of the Turkish Court of
Cassation, when the amount of expropriation compensation assessed by
the State is contested by the owners, the 5 years' period to claim the
recovery of the expropriated property starts to run from the date on
which the compensation is readjusted by the Courts.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 that
expropriation of their land by the Izmir Municipal Administration
constituted an unjustified interference with their right to peaceful
enjoyment of their possessions. They allege that they have not been
paid the expropriation compensation assessed by the Administration and
subsequently by the Court.
2. The applicants also complain under Article 1 of Protocol No. 1
that the dismissal of their request for the recovery of the land
constituted an unjustified interference with their right to peaceful
enjoyment of their possessions.
3. They further complain under Article 14 of the Convention that
they were subjected to discrimination in the peaceful enjoyment of
their possessions. They allege that the interests of the Administration
were protected in a discriminatory manner.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1
(P1-1) that the expropriation of their land without any compensation
constituted an unjustified interference with their right to peaceful
enjoyment of their possessions.
Article 1 of Protocol no. 1 (P1-1), in so far as relevant,
provides:
"Every natural ... 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 ..."
However, the Commission is not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of this provision, as this part of the application is
incompatible with the provisions of the Convention for the following
reasons:
The Commission observes that Turkey has recognised the competence
of the Commission to receive individual petitions under Article 25
(Art. 25) of the Convention only in relation to facts, including
judgments which are based on such facts, which have occurred subsequent
to 28 January 1987.
The Commission, however, notes that in the present case, the
expropriation took place in 1979. The Commission further notes that the
applicants asked for a revision of the expropriation compensation which
was readjusted by the court in 1986.
It follows that, in any event, this part of the application is
outside the competence ratione temporis of the Commission and therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
2. The applicants further complain under Article 1 of Protocol No.
1 (P1-1) that the dismissal of their request for the recovery of the
land constituted an unjustified intereference with their right to
peaceful enjoyment of their possessions.
The Commission recalls that the provisions of Article 1 of
Protocol 1 (P1-1) applies only to the existing possessions (cf. e.g.,
Eur Court H.R., Van Der Mussele judgment of 23 November 1983, Series
A no. 70, p. 23 para. 48; S.A. Pressos Compania Naviera and Others v.
Belgium, Comm. Report 4.7.94, p. 17 para. 59). The Commission further
recalls that at the admissibility stage, an applicant who alleges a
violation of Article 1 of Protocol No. 1 (P1-1) must produce evidence
showing that he is entitled to the "possession" within the meaning of
that Article (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146). In the
present case, the applicants must show that they were entitled to the
recovery of the land.
The Commission notes that, under Turkish Law, the previous owners
of the expropriated property may claim its recovery under certain
conditions which, in the absence of mutual agreement between the
parties, need to be determined by the courts. In the proceedings before
the Izmir Court of First Instance, the applicants argued that the
existence of shops and offices on the ground floor of the building and
the partial transfer thereof to a third party contravened the purposes
of the expropriation. However, their claim was dismissed. The Izmir
Court of First Instance, in its decision of 8 February 1993, held that
the Administration had constructed a building which was in conformity
with the purposes of the expropriation.
In view of the above, the Commission considers that the
applicants have not shown that they were entitled to the recovery of
the land.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants lastly allege under Article 14 (Art. 14) of the
Convention that they have been subjected to discrimination in the
peaceful enjoyment of their possessions. They allege that the interests
of the Administration were protected in a discriminatory manner.
The Commission has examined under Article 14 (Art. 14) of the
Convention in conjunction with Article 1 of Protocol No. 1 (P1-1),
whether the applicants have been subjected to discrimination in the
expropriation of their land and in the proceedings for the recovery of
the property.
Article 14 (Art. 14) prohibits discrimination only in the
enjoyment of the rights and freedoms guaranteed by the Convention.
However, as the Commission found above, the applicants' complaint
concerning the expropriation of their land is incompatible ratione
temporis with the provisions of the Convention. Therefore this aspect
of the application must be rejected on the same grounds.
As regards the alleged discrimination concerning the recovery of
the property, the Commission recalls that discrimination is prohibited
by the Convention only when different measures are adopted with regard
to persons in comparable situations (cf. Eur. Court H.R., Belgian
Linguistic judgment of 23 July 1968, Series A no. 6 pp. 33-34, paras
9-10).
However, in the present case, the applicants have not shown how
the dismissal of their request to recover their land constituted a
difference of treatment with regard to persons in comparable
situations. Moreover, they did not otherwise substantiate this
allegation. Therefore this aspect of the application is manifestly ill-
founded.
It follows that this part of the application must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy