52134/09, IŞLEK I CANBOLAT I INNI v. TURCJA - Decyzja Europejskiego Trybunału Praw Człowieka
Decyzja Europejskiego Trybunału Praw Człowieka z dnia 23 stycznia 2018 r. 52134/09
Application nos. 52134/09 and 54642/09
Ahmet Aslan İŞLEK against Turkey
and Münevver CANBOLAT 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,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 19 September 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. Their names, birth dates, and places of residence 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 respective plots of land in the Tarsus District of Mersin, the details of which appear in the Appendix.
5. 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 construction of roads in 1999 and 2003, respectively.
6. On 25 October 2004 the applicants initiated respective proceedings before the Tarsus Civil Court of First Instance, claiming compensation for de facto expropriation of their plots of land.
7. On 2 March 2007 the Tarsus Civil Court of First Instance awarded the applicants compensation, plus interest at the statutory rate. The Directorate's appeal and rectification requests were rejected by the Court of Cassation and the respective judgments of the Tarsus Civil Court of First Instance both became final on 24 September 2007.
8. On 12 June 2008 the applicants brought a second set of proceedings against the Directorate before the Tarsus Civil Court of First Instance claiming additional compensation for their de facto expropriated land.
9. On 16 October 2008 the Tarsus Civil Court of First Instance held hearings in the applicants' presence and accepted their claims. In the respective judgments delivered on the same day, the Tarsus Civil Court of First Instance held, in particular, that default interest should be applied to the applicants' additional compensation awards at the statutory rate running from 25 October 2004. None of the applicants filed an appeal against the judgments. Following the appeals lodged by the Directorate, the Court of Cassation upheld the judgments on 16 April 2009 and 2 July 2009, respectively.
10. In the meantime, the applicants submitted copies of the judgments delivered by the Tarsus 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 awards pursuant to Article 46 of the Constitution.
11. On 19 March 2009 and 20 March 2009 respectively, the Directorate made partial payments for the applicants' compensation awards, together with default interest running at statutory rate.
B. Relevant domestic law and practice
12. The relevant parts of Article 46 of the Constitution, as amended on 3 October 2001, read as follows:
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."
13. 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.
14. 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.
15. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
16. 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 significant pecuniary losses. They invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in this respect.
17. The Government contested that argument.
18. 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).
19. In the present cases, the applicants complained about the low interest rate applied to their compensation awards. The Court observes that the interest rate applicable to the applicants' compensation awards for de facto expropriation of their property was determined by the judgments of the Tarsus Civil Court of First Instance of 2 March 2007 and of 16 October 2008 and that the applicants did not file an appeal against these judgments before the Court of Cassation. The Court therefore concludes that the final decisions regarding the applicants' complaint were the judgments of the Tarsus Civil Court of First Instance delivered on 16 October 2008 (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 decisions also on 16 October 2008, given the fact that the Tarsus Civil Court of First Instance announced its judgments in the applicants' presence on the same date. However, the present applications were lodged with the Court on 19 September 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).
20. In view of the above, the Court concludes that the applications have 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,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 February 2018.
date of birth
place of residence
Details of the Applicant's Plot of Land
Ahmet Aslan İşlek
Mersin, Tarsus, Gaziler, Block 366, Parcel no.25
Ali Ihsan Canbolat
Mersin, Tarsus District, Mithatpaşa, Block 65, Parcel no.49