Europejskiego Trybunału Praw Człowieka
z dnia 4 grudnia 2018 r.
Application no. 33052/09
Viran Şabuh ÇARKÇI and Others
The European Court of Human Rights (Second Section), sitting on 4 December 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 12 June 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:
1. The applicants are Turkish nationals and live in Istanbul. Their names and birth dates appear in the appendix.
2. The applicants were represented by Ms N. Sarak, a lawyer practising in Istanbul. 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 Esenyurt, in the Büyükçekmece District of Istanbul, which had been registered in the land register as plot no. 18 and parcel no. 5104.
5. On 16 July 1996 the Esenyurt Municipality (hereinafter referred to as "the Municipality") took a decision in respect of the several plots of land with a view to enforcing the local land development plan. As a result of this administrative decision, the Municipality awarded compensation to the applicants in the amount of 408,670,000 Turkish liras (TRL 1 at the time), in exchange for their property rights over the plot of land in question.
6. On 22 February 2007 the applicants initiated proceedings before the Büyükçekmece Civil Court of First Instance and sought additional compensation, claiming that the compensation amount that had been fixed by the Municipality had been much lower than the original value of the property.
7. On 14 February 2008 the Büyükçekmece Civil Court of First Instance found in line with the applicants' request and awarded them TRY 110,340 plus interest at the statutory rate, running from the date of lodging the action. The Municipality's appeal and rectification requests were both dismissed by the Court of Cassation, and the judgment became final on 16 December 2008.
8. On 1 May 2008 the applicants initiated enforcement proceedings before the Bakırköy Enforcement Office which issued confiscation orders for the Municipality's bank accounts on several dates. However upon the Municipality's objections, the orders were removed by the Bakırköy Enforcement Court on the ground that the money deposited in the Municipality's bank accounts were dedicated to the expenditures related to public services.
9. On 5 November 2009 the Municipality paid TRY 130,404.55, a sum comprising the compensation award in full and the accrued statutory interest in part, to the applicants. The enforcement proceedings in respect of remaining part of the default interest and the enforcement fees were still pending at the date of communication of the application.
B. Relevant domestic law and practice
10. 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.
11. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the delay in the payment of compensation award for de facto expropriation of their land.
12. The applicants further submitted under Article 1 of Protocol No. 1 to the Convention that by depriving them of their ownership of their plot of land in exchange for a compensation amount fixed by a court decision, without having recourse to normal expropriation proceedings, the Municipality had breached their rights to the peaceful enjoyment of their possessions.
A. As to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention (delayed enforcement of judgment)
13. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities delayed paying them the compensation amount awarded by the domestic courts.
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 applicants had not exhausted domestic remedies, as they 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 applicants' 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 above, the Court concludes that the applicants' complaint regarding the delayed enforcement of domestic judgments should be rejected under Article 35 §§ 1 and 4 of the Convention for non–exhaustion of domestic remedies.
B. Other complaint
19. The applicants also complained of a violation of Article 1 of Protocol No. 1 to the Convention in that they had been deprived of their plot of land in exchange for compensation without having recourse to normal expropriation proceedings.
20. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to 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 17 January 2019.
1. Mr Viran Şabuh Çarkçı was born in 1956
2. Ms Seta Çarkcı was born in 1930
3. Ms Rita Araksi Hahn was born in 1954
4. Ms Şake Armen Siemaszko was born in 1952
. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.