SECOND SECTION
\nDECISION<\/p>\n
Application no. 23298\/09
\nGazale KEPEN\u00c7
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 4\u00a0December 2018 as a Committee composed of:<\/p>\n
LediBianku, President,
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 30 March 2009,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 12 March 2014 requesting the Court to strike the application out of the list of cases and the applicant\u2019s reply to that declaration,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms GazaleKepen\u00e7, is a Turkish national, who was born in 1962 and lives in Mardin. She was represented by Ms \u0130. Fidan and Mr\u00a0A.\u00a0Aydemir, lawyers practising in Mardin.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0The applicant had a plot of land in Cumhuriyet Quarter, in the K\u0131z\u0131ltepe District of Mardin, which had been registered in the land register as block no. 74 and parcel no. 3.<\/p>\n 5.\u00a0\u00a0In 1986 the K\u0131z\u0131ltepe Regional Directorate of Ministry of Education (hereinafter referred to as \u201cthe Directorate\u201d) started to use the applicant\u2019s plot of land with a view to construction of a school building.<\/p>\n 6.\u00a0\u00a0On 29 June 2004 the applicant brought an action before the K\u0131z\u0131ltepe Civil Court of First Instance against the Directorate and sought compensation for de facto expropriation of her land.<\/p>\n 7.\u00a0\u00a0On 30 November 2006 the K\u0131z\u0131ltepe Civil Court of First Instance awarded the applicant 86,765.66 Turkish liras (TRY \u2013\u00a0approximately 48,600\u00a0euros (EUR) at the time) of compensation plus statutory interest running from the date of introduction of the case.<\/p>\n 8.\u00a0\u00a0On 3 December 2007 the Court of Cassation quashed the judgment of 30\u00a0November 2006 on the ground of lack of proper investigation and remitted the case to the K\u0131z\u0131ltepe Civil Court of First Instance for further investigation.<\/p>\n 9.\u00a0\u00a0On 13 November 2008 the K\u0131z\u0131ltepe Civil Court of First Instance awarded the applicant TRY 86,765.66 plus interest at the statutory rate, running from 29 June 2004.<\/p>\n 10.\u00a0\u00a0On 9 February 2009 the Court of Cassation upheld the judgment of the first instance court.<\/p>\n 11.\u00a0\u00a0Following notification of the judgment of the K\u0131z\u0131ltepe Civil Court of First Instance, on 26 February 2009, the applicant initiated enforcement proceedings before the \u0130zmir Enforcement Office.<\/p>\n 12.\u00a0\u00a0On 12 March 2009, the Directorate paid the compensation award in full together with the statutory interest, namely TRY\u00a0178,445.20 (approximately EUR 79,750 at the time), to the applicant.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0De facto expropriation of the applicant\u2019s land<\/strong><\/p>\n 13.\u00a0\u00a0The applicant complained that her right to peaceful enjoyment of possessions had been breached due to the de facto expropriation of her plot of land. She relied on Article 1 of Protocol No. 1 to the Convention. This complaint was communicated to the Government.<\/p>\n 14.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 12 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant\u2019s complaints under Article 1 of Protocol No. 1 to the Convention. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.<\/p>\n The declaration provided as follow:<\/p>\n \u201cThe Government hereby wishes to express by way of unilateral declaration that the interference with the applicant\u2019s property rights does not meet the standards enshrined in Article 1 of Protocol No. 1 to the Convention.<\/p>\n Consequently, the Government is prepared to pay the applicant 2,070 (two thousand and seventy) euros to cover any all pecuniary and non-pecuniary damage and costs and expenses. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 \u00a7 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.<\/p>\n The Government therefore invites the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as \u201cany other reason\u2019\u2019 justifying the striking out of the case of the Court\u2019s list of cases, as referred to in Article 37\u00a7 1 (c) of the Convention.\u201d<\/p>\n 15.\u00a0\u00a0By a letter of 5 May 2014, the applicant\u2019s representative indicated that he was not satisfied with the terms of the unilateral declaration.<\/p>\n 16.\u00a0\u00a0The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article\u00a037 \u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the applications\u201d.<\/p>\n 17.\u00a0\u00a0It also reiterates that in certain circumstances, it may strike out an application under Article 37 \u00a7 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.<\/p>\n 18.\u00a0\u00a0To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no.\u00a026307\/95, \u00a7\u00a7 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no.\u00a011602\/02, 26 June 2007; and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September 2007).<\/p>\n 19.\u00a0\u00a0The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the de facto expropriation and the application of a lower rate of interest to compensation awards for de facto expropriations instead of the rate applicable to formal expropriation procedures (see Sar\u0131ca and Dilaver v.\u00a0Turkey, no. 117655\/05, \u00a7\u00a7 38-52, 27 May 2010, and Ergen and Others v.\u00a0Turkey, nos. 35364\/05 and 4 others, \u00a7\u00a7 27-30, 7 December 2010).<\/p>\n 20.\u00a0\u00a0Having regard to the nature of the admissions contained in the Government\u2019s declaration, as well as the amount of compensation proposed \u2013\u00a0which is consistent with the amounts awarded in similar cases \u2013 the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 \u00a7 1 (c)).<\/p>\n 21.\u00a0\u00a0Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 \u00a7 1 in fine).<\/p>\n 22.\u00a0\u00a0The Courts considers that this amount (2,070 euros (EUR)) should be converted into the currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court\u2019s decision issued in accordance with Article37 \u00a7\u00a01 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.<\/p>\n 23.\u00a0\u00a0Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 \u00a7 2 of the Convention (Josipovi\u0107 v. Serbia (dec.), no. 18369\/07, 4 March 2008).<\/p>\n 24.\u00a0\u00a0In view of the above, it is appropriate to strike this complaint out of the list.<\/p>\n B.\u00a0\u00a0Excessive Length of Proceedings<\/strong><\/p>\n 25.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention about the excessive length of the domestic proceedings.<\/p>\n 26.\u00a0\u00a0The Court observes that a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of \u00dcmm\u00fchan Kaplan v. Turkey (no. 24240\/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v.\u00a0Turkey ((dec.), no. 4860\/09, 26 March 2013), the Court declared a new 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 length of proceedings.<\/p>\n 27.\u00a0\u00a0It therefore concludes that this part of the application must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for no\u2011exhaustion of domestic remedies.<\/p>\n C.\u00a0\u00a0Other Complaints<\/strong><\/p>\n 28.\u00a0\u00a0Invoking Article 1 of Protocol No.1 to the Convention, the applicant also complained that the amount of the compensation awarded for de facto expropriation of her land had depreciated considerably in value due to the prolonged proceedings. She further maintained that the amount of the compensation award paid to her had been less than the market price of her land. These complaints were not communicated to the Government.<\/p>\n 29.\u00a0\u00a0In 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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Takes note of the terms of the respondent Government\u2019s declaration under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;<\/p>\n Decides to strike the application out of its list of cases in accordance with Article\u00a037 \u00a7\u00a01\u00a0(c) of the Convention.<\/p>\n Declares the remainder of the application inadmissible.<\/p>\n Done in English and notified in writing on 17 January 2019.<\/p>\n Hasan Bak\u0131rc\u0131 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LediBianku
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n