18481/09, GÖKÇEN v. TURCJA - Decyzja Europejskiego Trybunału Praw Człowieka

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Decyzja Europejskiego Trybunału Praw Człowieka z dnia 19 grudnia 2017 r. 18481/09

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2017:1219DEC001848109

SECOND SECTION

DECISION

Application no. 18481/09

Mustafa GÖKÇEN

against Turkey

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 application lodged on 2 March 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

THE FACTS

1. The applicant, Mr Mustafa Gökçen, is a Turkish national, who was born in 1932 and lives in Elazığ.

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 applicant owned two plots of land in Eskişehir, in the Kiğı District of Bingöl, which had been registered in the land register as plot no. 127 and parcels nos. 45 and 46.

5. On an unknown date the General Directorate of National Water Board (Devlet Su İşleri Genel Müdürlüğü, hereinafter referred to as "the Board") started using the applicant's plots of land with a view to construction of a road for Özlüce dam.

6. On 5 March 2007 the applicant brought an action before the Kiğı Civil Court of First Instance against the Board and sought compensation for de facto expropriation of his plots of land.

7. On 13 November 2007 the Kiğı Civil Court of First Instance awarded the applicant 75,242.58 Turkish liras (TRY) plus interest at the statutory rate, running from the date of lodging the action. The Board filed an appeal against the judgment. On 13 March 2008 the Court of Cassation rejected the Board's appeal and the judgment became final on 25 April 2008.

8. On 28 April 2008 the applicant applied to the Board and sought enforcement of the judgment.

9. On 7 May 2008 and 28 July 2008 the Board informed the applicant that the compensation amount awarded by the domestic courts would be paid to the applicant after the necessary funding was provided.

10. On 26 March 2009 the Board paid the compensation award in full, together with the statutory interest.

B. Relevant domestic law and practice

11. A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 14 below) may be found in Demiroğlu and Others v. Turkey (dec.), no. 56125/10, 4 June 2013.

Zarzuty

COMPLAINT

12. Without referring to any particular provision of the Convention, the applicant complained about the delay in the payment of compensation award for de facto expropriation of his land.

Uzasadnienie prawne

THE LAW

13. The applicant complained that the domestic authorities had failed to enforce the final judgment of 13 November 2007 that had awarded him compensation. The Court considers that this complaint falls to be examined from the standpoint of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

14. 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 applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.

15. 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.

16. 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.

17. However, taking into account the Government's preliminary objection with regard to the applicant's failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Demiroğlu and Others, cited above.

18. In view of the foregoing, the Court concludes that the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non–exhaustion of domestic remedies.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application inadmissible.

Done in English and notified in writing on 18 January 2018.

Hasan Bakırcı

Nebojša Vučinić

Deputy Registrar

President