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URL: http://www.bailii.org/eu/cases/ECHR/2009/2258.html
Cite as: [2009] ECHR 2258

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Resolution CM/ResDH(2009)140^¹

Execution of the judgment of the European Court of Human Rights

Gök and others against Turkey

(Application No. 71867/01, 71869/01, 73319/01 and 74858/01, judgment of 27 July 2006,

final on 27 October 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the applicants' right to a fair trial on account of subsequent factual findings by domestic courts in contradiction with their earlier final judgments (violation of Article 6, paragraph 1 of the Convention) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)140

Information about the measures to comply with the judgment in the case of

Gök and others against Turkey

Introductory case summary

The case concerns the violation of the applicant's right to a fair trial on account of subsequent factual findings by domestic courts in contradiction with earlier final judgments (violation of Article 6§1).

The applicants were joint owners of a plot of land occupied by the Ministry of Defence. In 1996, they brought an action seeking compensation for the de facto expropriation of their land. The first-instance court dismissed the authorities' objection that the action was time-barred, finding that the land in question had been occupied in 1991 and not in 1977. Accordingly, the court awarded compensation, which the Court of Cassation upheld. In 1999, the applicants brought another action seeking additional compensation in respect of the same expropriation. On the basis of the earlier factual findings, the civil court granted the applicants' claims. However, the Court of Cassation set aside this judgment, holding for the first time in the proceedings that the action was in fact time-barred as the land had been occupied in 1977, not in 1991 as previously held. In line with this ruling, the civil court, to which the case was referred back, dismissed the applicants' claims definitively.

The European Court found that, by returning without any valid reason to an issue which had already been the subject of a final decision, the domestic courts had infringed the principle of “legal certainty”.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

15 100 EUR

1 500 EUR

16 600 EUR

Paid on 24/01/2007

b) Individual measures

The European Court awarded the applicants just satisfaction in respect of all the damages sustained. No further individual measures appear necessary.

II. General measures

The judgment of the Court has been published and sent out to domestic judicial authorities. A translation is available on Ministry of Justice website at http://www.inhak-bb.adalet.gov.tr/aihm/karar/gokvedigerleri.doc. It seems that the situation criticised by the European Court in this case is an isolated one. Therefore, no further general measures appear necessary.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

1 Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies