European Court of Human Rights

SECOND SECTION

DECISION

Application no. 17462/03
by Muammer Sezai ÇELENK and Vahide ÇELENK
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 December 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 19 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Muammer Sezai Çelenk and Mrs Vahide Çelenk, are Turkish nationals who were born in 1931 and 1937 respectively and live in Sinop. They are represented before the Court by Mr E. Yıldız, a lawyer practising in Sinop. The Turkish Government (“the Government”) are represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants jointly own an apartment on the ground floor of a building in the Durağan district of Sinop. On 25 July 1991 they rented the apartment to Türkiye Halk Bankası A.Ş., a public bank, who used it as the Durağan branch.

On 18 February 2000 Law no. 4531 came into force. Section 1 of Law no. 4531 added a provisional section (s.7) to Law no. 6570 (Law on the rental of immovable property), under which rents of immovable property could not be increased by more than 25% in 2000 and 10% in 2001.

On 4 June 2001 the applicants brought proceedings before the Durağan Magistrates' Court against Türkiye Halk Bankası A.Ş. They requested the court to increase the annual rent of the apartment from 180,000,000 Turkish liras (TRL)¹ to TRL 5,000,000,000².

On an unspecified date Türkiye Halk Bankası A.Ş. made their submissions in reply to the applicants' request. They maintained, inter alia, that according to provisional section 7 of Law no. 6570 the rent of the apartment could not be increased by more than 10 % in 2001.

In a judgment given on 19 July 2001, published in the Official Gazette on 15 September 2001, the Constitutional Court annulled provisional section 7 of Law no. 6570 in so far as it provided for a limitation on rent increases in 2001. The Constitutional Court considered that the limitation had become a disproportionate interference with the right to property as a result of the economic crisis of February 2001 in Turkey.

On 29 March 2002 the Durağan Magistrates' Court partially granted the applicants' request and increased the rent to TRL 3,000,000,000³, which is more than 10 %.

On 13 June 2002 the Court of Cassation quashed the judgment of 29 March 2002, holding that pursuant to provisional section 7 of Law no. 6570, which had entered into force in 2000, the rent of the apartment could not be increased by more than 10% in 2001. The case was remitted to Durağan Magistrates' Court.

On 6 September 2002 the Durağan Magistrates' Court abided by the Court of Cassation's decision and increased the annual rent by 10 %.

On 1 October 2002 the applicants appealed. In their petition, they contended, inter alia, that provisional section 7 of Law no. 6570 had been annulled in so far as it concerned the limitation on rent increases in 2001.

On 19 November 2002 the Court of Cassation dismissed the applicants' appeal, stating that the judgment of 6 September 2002 was in accordance with domestic legislation.

On an unspecified date the applicants requested rectification of the Court of Cassation's decision of 19 November 2002.

On 15 January 2003 the Durağan Magistrates' Court dismissed the applicants' request, holding that the remedy of rectification of a decision was not applicable to the proceedings in question, pursuant to Article 440 § 3 of the Code of Civil Procedure.

COMPLAINTS

The applicants complained, without invoking any Article of the Convention, that that the domestic courts had dismissed their request by basing their decisions on a legal provision which had been annulled by the Constitutional Court while the proceedings brought by them had been pending. The applicants further complained that the domestic courts' decisions had constituted an unjustified interference with their right to property.

THE LAW

By letter dated 13 May 2008 the Government's observations were sent to the applicants' representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 24 June 2008.

By letter dated 28 July 2008, sent by registered post, the applicants' representative was notified that the period allowed for submission of the applicants' observations had expired on 24 June 2008 and that no extension of time had been requested. The applicants' representative's attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicants' representative received this letter on 7 August 2008. However, no response has been received.

The Court considers that, in these circumstances, the applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Sally Dollé Françoise Tulkens
Registrar President