SECOND SECTION
\nDECISION<\/p>\n
Application no. 33052\/09
\nViran \u015eabuh \u00c7ARK\u00c7I and Others
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 4\u00a0December 2018 as a Committee composed of:<\/p>\n
Ledi Bianku, President,
\nJon FridrikKj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 12 June 2009,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/p>\n
1.\u00a0\u00a0The applicants are Turkish nationals and live in Istanbul. Their names and birth dates appear in the appendix.<\/p>\n
2.\u00a0\u00a0The applicants were represented by Ms N. Sarak, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/p>\n
3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n
4.\u00a0\u00a0The applicants had a plot of land in Esenyurt, in the B\u00fcy\u00fck\u00e7ekmece District of Istanbul, which had been registered in the land register as plot no.\u00a018 and parcel no. 5104.<\/p>\n
5.\u00a0\u00a0On 16 July 1996 the Esenyurt Municipality (hereinafter referred to as \u201cthe Municipality\u201d) 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.<\/p>\n
6.\u00a0\u00a0On 22 February 2007 the applicants initiated proceedings before the B\u00fcy\u00fck\u00e7ekmece Civil Court of First Instance and sought additional compensation, claiming thatthe compensation amount that had been fixed by the Municipality had been much lower than the original value of the property.<\/p>\n
7.\u00a0\u00a0On 14 February 2008 the B\u00fcy\u00fck\u00e7ekmece Civil Court of First Instance found in line with the applicants\u2019 request and awarded them TRY\u00a0110,340 plus interest at the statutory rate, running from the date of lodging the action. The Municipality\u2019s appeal and rectification requests were both dismissed by the Court of Cassation, and the judgment became final on 16\u00a0December 2008.<\/p>\n
8.\u00a0\u00a0On 1 May 2008 the applicants initiated enforcement proceedings before the Bak\u0131rk\u00f6y Enforcement Office which issued confiscation orders for the Municipality\u2019s bank accounts on several dates. However upon the Municipality\u2019s objections, the orders were removed by the Bak\u0131rk\u00f6y Enforcement Court on the ground that the money deposited in the Municipality\u2019s bank accounts were dedicated to the expenditures related to public services.<\/p>\n
9.\u00a0\u00a0On 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.<\/p>\n
B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n
10.\u00a0\u00a0A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 14 below) may be found in Demiro\u011flu and Others v. Turkey (dec.), no. 56125\/10, 4 June 2013.<\/p>\n
COMPLAINTS<\/p>\n
11.\u00a0\u00a0Invoking Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No.\u00a01 to the Convention, the applicants complained about the delay in the payment of compensation award for de facto expropriation of their land.<\/p>\n
12.\u00a0\u00a0The 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.<\/p>\n
THE LAW<\/p>\n
A.\u00a0\u00a0As to Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No.\u00a01 to the Convention (delayed enforcement of judgment)<\/p>\n
13.\u00a0\u00a0The applicants complained under Article 6 \u00a7 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.<\/p>\n
14.\u00a0\u00a0The 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.<\/p>\n
15.\u00a0\u00a0The 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 \u00dcmm\u00fchan Kaplan v. Turkey (no.\u00a024240\/07, 20 March 2012). Subsequently, in its decision in the case of Demiro\u011flu 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.<\/p>\n
16.\u00a0\u00a0The Court notes that in its judgment in the case of \u00dcmm\u00fchan Kaplan (cited above, \u00a7 77), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.<\/p>\n
17.\u00a0\u00a0However, taking into account the Government\u2019s preliminary objection with regard to the applicants\u2019 failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Demiro\u011flu and Others, cited above.<\/p>\n
18.\u00a0\u00a0In view of the above, the Court concludes that the applicants\u2019 complaint regarding the delayed enforcement of domestic judgments should be rejected under Article 35\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention for non\u2011exhaustion of domestic remedies.<\/p>\n
B.\u00a0\u00a0Other complaint<\/p>\n
19.\u00a0\u00a0The 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.<\/p>\n
20.\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 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 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
For these reasons, the Court, unanimously,<\/p>\n
Declares 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 Ledi Bianku
\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
<\/p>\n
Appendix<\/p>\n
1. Mr Viran\u015eabuh\u00c7ark\u00e7\u0131 was born in 1956<\/p>\n
2. Ms Seta \u00c7arkc\u0131 was born in 1930<\/p>\n
3. Ms Rita Araksi Hahn was born in 1954<\/p>\n
4. Ms \u015eake Armen Siemaszko was born in 1952<\/p>\n
_______________<\/p>\n
[1].\u00a0\u00a0On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY\u00a01\u00a0= TRL\u00a01,000,000.<\/p>\n