European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/395.html
Cite as: [2010] ECHR 395
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SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
38045/05
by Remzi Tekin BOZKURT
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 March 2010 as a Chamber composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally Dollé, Section
Registrar,
Having regard to the above application lodged on 5 October 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Remzi Tekin Bozkurt, is a Turkish national who was born in 1919 and lives in İstanbul. He was represented before the Court by Mr Şamil Demir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a plot of land (plot no. 208), 9,511 square metres in size, on Türkeli (Avşa) island. The plot in question is situated on the seashore.
On an unspecified date the Türkeli Municipality prepared a local development plan (imar planı). According to this plan, the part of plot no. 208 situated within the first fifty metres from the sea was reserved as a “public green space” and the part in the remaining fifty metres was earmarked as amenity space.
On 20 June 2000 the applicant requested the municipality to expropriate his land.
When the applicant received no response to his request, on 7 December 2000 he brought a case before the Bursa Administrative Court against the Türkeli Municipality. He submitted, inter alia, that the local development plan limited his enjoyment of his property. He therefore requested that his land be expropriated and that he be paid compensation, pursuant to the Coastal Property Act (Law no. 3621), since the fate of his land remained uncertain.
On 1 November 2001 the Bursa Administrative Court dismissed the applicant's case. In its judgment, the first-instance court held that expropriation was not required in respect of that part of plot no. 208 which had been reserved as “public green space” since it was on the seashore and therefore the responsibility and property of the State. The court further considered that the applicant himself could use the second part for amenities.
The applicant appealed. On 14 January 2004 the Supreme Administrative Court upheld the judgment of 1 November 2001.
On 8 March 2005 the Supreme Administrative Court dismissed the applicant's request for rectification of the decision. On 11 April 2005 the decision of 8 March 2005 was served on the applicant's representative.
COMPLAINT
The applicant complained, without invoking any Articles of the Convention or its Protocols, that his inability to use his property constituted an interference with his right to the peaceful enjoyment of his possessions. In this connection, he submitted that the authorities had not expropriated his land and they had thus failed to compensate him for the damage resulting from the interference in question.
THE LAW
The Government argued that the applicant had not complied with the obligation to exhaust domestic remedies. They referred to Article 125 of the Constitution, which provided that all acts and decisions of the administration were subject to judicial review and that the administration was liable for all damage caused by its acts and measures. It was pointed out by the Government that the liability defined in Article 125 of the Constitution could have been enforced by bringing a full remedy action under Article 13 of the Code of Administrative Judicial Procedure (Law no. 2577 of 6 January 1982). Article 13 provides that persons who have suffered damage on account of a wrongful act of the administration may bring compensation proceedings against the latter within a year from the date on which they learn of the impugned act and, in any event, within five years from the commission of that act.
The applicant submitted that he could not bring an action for damages under Article 13 of the Code of Administrative Judicial Procedure because his land had not been expropriated and therefore he had not suffered any loss.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI).
The Court observes that in a number of cases against Turkey similar complaints have been declared inadmissible by the Court on account of an applicant's failure to use the remedy available under Article 13 of Law no. 2577, as referred to by the Government above (see, inter alia, Pınar Güngör v. Turkey, no. 46745/99, 6 March 2007, and Gülizar Öz v. Turkey, no. 40687/98, 1 July 2004). In the present case the applicant has not put forward any fact or argument capable of persuading the Court to reach a different conclusion.
Consequently, the Court finds that the applicant cannot be considered to have complied with the exhaustion of domestic remedies rule. The application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally Dollé Françoise Tulkens
Registrar President