AS TO THE ADMISSIBILITY OF
by Neriman BELİCE and Others
The European Court of Human Rights (Second Section), sitting on 15 December 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 30 September 2002,
Having deliberated, decides as follows:
The applicants, whose names and dates of birth appear in the appendix, are Turkish nationals who live in Hatay, Istanbul, İskenderun and Adana. They were represented before the Court by Mr A.İ. Köseoğlu, a lawyer practising in Hatay.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 4 January 1991 the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü) (“the General Directorate”) expropriated nine plots of land belonging to the applicants.
On 6 October 1999, after the finalisation of the proceedings concerning an ownership dispute over the impugned plots between the applicants and a third party, the expropriation decision was served on the applicants and the expropriation procedure thus became final. According to the assessment made by the General Directorate, the applicants were to be paid 445,667,600 Turkish liras (TRL) (approximately 882 euros (EUR)) in expropriation compensation.
On 3 November 1999 the applicants brought an action before the Erzin Civil Court seeking additional expropriation compensation. After consulting three expert reports, on 5 June 2001 the court awarded the applicants additional compensation of TRL 53,706,077,000 (approximately EUR 55,700) plus interest at the statutory rate, running from 5 November 1999.
On 23 January 2002 the Court of Cassation upheld the judgment of the first-instance court. This decision was served on the applicants in February 2002.
The applicants subsequently brought execution proceedings against the General Directorate before the İskenderun 2nd Execution Office to recover the amount awarded by the Erzin Civil Court (file no. 2002/364).
On 26 June 2002 the administration paid the applicants TRL 145,394,780,000 (approximately EUR 95,447) in additional compensation, together with interest. It appears, however, that the initial expropriation compensation of TRL 445,667,600 remained unpaid.
In the meantime, in April 2002 the applicants initiated another set of execution proceedings against the General Directorate before the İskenderun 2nd Execution Office in relation to the initial expropriation compensation which the latter had failed to pay (file no. 2002/633).
On 25 April 2002 the General Directorate objected to the execution proceedings, arguing that the impugned money was being held in a blocked account at the central bank due to the applicants’ failure to transfer their parcels at the title deed register (ferağ).
On 29 April 2002 the İskenderun Execution Office stopped the execution proceedings on the basis of the General Directorate’s objection and on 6 May 2002 the applicants brought an action before the İskenderun Execution Court to challenge the objection.
On 15 July 2002 the execution court rejected the General Directorate’s objection. This court held, inter alia, that the administration was liable to pay the expropriation compensation in cash, at once without any reductions or limitations, that the applicants could not be held accountable for the failure of the transfer transactions and that the administration had the authority to complete the procedures before the title deed register unilaterally.
On 3 March 2003 the Court of Cassation quashed the judgment of the execution court. It held that the question whether the expropriation compensation could be rightfully claimed and collected was one that had to be resolved before civil courts and that the execution proceedings could thus not proceed without a court decision attesting the administration’s debt.
On 17 October 2003 the Court of Cassation rejected the applicants’ rectification request.
On 16 September 2004 the İskenderun Execution Court dismissed the applicants’ request in accordance with the Court of Cassation’s decision of 3 March 2003. The applicants did not appeal against this judgment. Nor did they commence proceedings before the civil courts to claim the initial expropriation compensation as indicated by the Court of Cassation.
The applicants complained under Article 1 of Protocol No. 1 of the non payment of the initial expropriation compensation, of the insufficiency of the additional expropriation awarded by domestic courts and of the financial loss they suffered on account of the excessive delay in the payment of the additional compensation in view of low interest rates.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court observes that the Erzin Civil Court ordered the payment of TRL 53,706,077,000, plus interest, to the applicants as additional expropriation compensation and on 23 January 2002 the Court of Cassation upheld this judgment. The Court of Cassation’s decision was served on the applicants in February 2002, whereas the application was lodged with the Court on 30 September 2002, more than six months later.
It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court finds that, using the method of calculation adopted in the case of Akkuş v. Turkey (9 July 1997, §§ 35 and 36, Reports of Judgments and Decisions 1997 IV) and having regard to the relevant economic data at the material time, on the date of the payment the applicants should have received TRL 125,597,000,000 (approximately EUR 82,450). However, they received TRL 145,394,780,000 (approximately EUR 95,447). The Court observes in these circumstances that the applicants suffered no damage in respect of the amount of compensation awarded by the Erzin Civil Court on 5 June 2001.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the non-payment of the initial expropriation compensation;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens
-Applicants’ names and dates of birth-
1. Neriman Belice (1397)
2. Fatma Doğan (1935)
3. Melek Karan (1955)
4. Mustafa Doğan (1957)
5. Halime Doğan (1960)
6. Şehriban Doğan (1969)
7. Mustafa Karan (1948)
8. Fatma Arat (1948)
9. Hüseyin Karan (1956)
10. Ahmet Karan (1950)
11. Sıdıka Atav (unknown)
12. Hasan Karan (1953)
13. Ali Karan (1959)
14. Sadık Karan (1962)
15. Nimet Kurt (Karan) (1965)
16. Hatice Karan (1964)
17. Mustafa Karan (1954)
18. Dursun Belice (1966)
19. Hüseyin Karan (1958)
20. Sıdıka Karan (1956)
21. Necla Karan (1935)
22. Afet Bellioğlu (1955)
23. Fatma Ayyıldız (1960)
24. Taylan Karan (1969)
25. Kenan Ulaş Karan (1976)
26. Kamile Karan (1918) (1337 according to the Islamic calendar)
27. Sadık Karan (1942)