SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 31866/09 and 31878/09 by Hüseyin ALTINTAŞ and Mehmet Abdurrahman KUTLU against Turkey

The European Court of Human Rights (Second Section), sitting on 24 August 2010 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , Dragoljub Popović , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and S tanley Naismith , Section Registrar ,

Having regard to the above application s lodged on 26 May 2009,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Hüseyin Altıntaş (no. 31866/09) and Mr Mehmet Abdurrahman Kutlu (no. 31878/09), who are Turkish nationals and were born in 1965 and 1951 respectively, live in Diyarbakır . They are represented before the Court by Mr Z. Demir and Mr S. Buluttekin , lawyers practising in Diyarbak ı r .

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

The applicants are owners of plots of land in Kulpa , Diyarbak ı r .

The parcel number of the applicants ' plots of land and their respective sizes are detailed in T able I below:

No. 31866/09

District of Ovacık

Parcel no. 186-2

10,125 m2

No. 31878/09

District of Ovacık

Parcel no. 184-6

3,116 m2

The applicants claimed that since 1987 the military authorities had seized their land and used the plots as a military training area.

On 6 September 2002 the applicants brought an action against the Ministry of Defence with the Kulpa Civil Court to obtain compensation for the de facto expropriation of their land.

On 15 March 2006, holding that the applicants ' land had been fully seized by the military, the first-instance court awarded the applicants 269,598 Turkish liras (TRY) and TRY 52,401 in compensation respectively.

The Ministry of Defence declared in its appeal submissions to the Court of Cassation that it had decided to return the land to the applicants. Consequently, the clearing work was undertaken and the military embarked on removing the wire fence surrounding the applicants ' land.

On 20 June 2006 the Court of Cassation quashed the decisions of 15 March 2006 and remitted the cases to the first-instance court for reconsideration.

On 23 February 2007 the trial judge, accompanied by four experts, carried out an on-site inspection to assess the current situation of the land concerned, following the military authorities ' decision to partially revoke the ir seizure of the applicants ' lands. On 15 , 19 and 20 March 2002 three different groups of experts submitted their reports to the court, stating that while the military had seized parts of the applicants ' land, estimated at 866 m2 and 55 m2 respectively, it had abandoned the rest.

In the expert report drawn up on 15 March 2007, the applicants ' plots of land were divided into two zones that the military had continued or ceased to occupy. Subsequently, the compensation for expropriation and restoration of the applicants ' land was estimated as set out in T able II below:

Zone A

Zone B

No. 31866/09

TRY 10,399 compensation for de facto expropriation (866 m2 x 12)

TRY 58,105 compensation for the restoration of 4,316 m2

No. 31878/09

TRY 666 compensation for de facto expropriation (55 m2 x 12)

TRY 6,910 compensation for the restoration of 627 m2

On the applicants ' objection to the expert reports, the first-instance court requested a new expert assessment.

The court dismissed the findings of the new expert report submitted on 27 July 2007 with regard to the valuation of the land as it conflicted with the other evidence in the case file.

The Kulpa Civil Court held that the valuation of the applicants ' land in the expert report of 15 March 2001 was compatible with the records of the tax office as regards the ratio value of comparable plots of land in the area. On 21 January 2008, establishing that part of the applicants ' land, namely Zone A, had still been occupied by the military, the court awarded the applicants TRY 10,399 and TRY 666 respectively, in compensation for expropriation.

Taking into account the recent developments in the area concerned, leading to a change in the classification of the applicants ' properties from agricultural land to building plots, the court awarded the applicants TRY 58,105 and TRY 6,910 respectively in compensation for the restoration of the parts of their land that the military had ceased to occupy, namely Zone B.

Moreover, in its decision, the court ordered that the legal expenses be paid by the parties in accordance with the satisfaction of their claims.

On 12 May 2008 the Court of Cassation upheld those decisions.

On 13 October 2008 the Court of Cassation rejected the applicants ' requests for rectification.

COMPLAINTS

The applicant s complained under Article 1 of Protocol No. 1 tha t they had been unable to enjoy the remaining part of their land which had not been expropriated because of the alleged security restrictions imposed by the military authorities.

The applicants further complained that they had been awarded insufficient compensation for expropriation, as the domestic court had relied on the submissions of the tax office, whose valuation of comparable lands in the area had been significantly lower than their actual market price.

Under the same provision of the Convention, the applicants argued that the domestic court should not have rendered a judgment on the restoration of their land without a request having been submitted by the applicants. In this connection, the applicants contended that they had been unfairly made to bear the legal expenses of the proceedings.

Relying on Articles 8 and 13 of the Convention, the applicants complained that the proceedings had been unreasonably lengthy and that they had been unable to challenge the excessive length of those proceedings due to the alleged absence of an effective remedy in the domestic system.

THE LAW

1. In view of the similarity of the two cases, the Court finds it appropriate to join and examine them together.

2. The applicants complained under Articles 8 and 13 of the Convention that the domestic courts had not concluded the proceedings within a reasonable time and that there had been no effective remedy that they could have pursued in respect of undue delays in the proceedings.

The Court considers that these complaints must be examined from the standpoint of Articles 6 § 1 and 13 of the Convention.

It finds that it cannot, on the basis of the case files, determine the admissibility of these complaints 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 applications to the respondent Government.

3. Relying on Article 1 of Protocol No. 1, the applicants complained that they had not been able to freely dispose of the remaining part of their land which had not been expropriated, due to the security restrictions imposed by the military. In this connection they argued that the military authorities should have expropriated their land as a whole.

The Court notes in the first place that the applicants did not submit any evidence demonstrating that the access to or the use of their land was subjected to authorisation by the military authorities or any other restrictions. Moreover, according to the submissions in the case file, the Court observes that the applicants did not, in form or in substance, complain before the national authorities of such alleged impediments to the peaceful enjoyment of the remaining part of their land.

The Court considers therefore that these parts of the applications must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The applicants complained further under Article 1 of Protocol No. 1 that the domestic courts had awarded an insufficient amount of compensation in respect of Zone A, the part of their land which had been expropriated by the military. In this connection, the applicants argued that the domestic court had based its decisions on the comparable land values submitted by the tax office , which had been far from representing the actual value of their land .

Moreover, relying on the same provision of the Convention, the applicants alleged that the domestic court had ruled on the restoration of their land, despite the fact that they had not submitted a claim in that respect. In this connection, the applicants argued that they had been unfairly made to bear the legal expenses.

T he Court first notes that in these applications there was a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1 due to the de facto expropriation of the applicants ' land by the military authorities. For the purpose of determining the proportionality of the national authorities ' interference with the applicants ' right to property, the Court must ascertain whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individuals ' fundamental rights ( see Sporrong and Lönnroth v. Sweden , 23 September 1982 , Series A no. 52 ).

As to the applicants ' allegation of insufficien t compensation for expropriation, the Court reiterates that the domestic courts enjoy a certain margin of appreciation and they are better placed than the Court to resolve such technical issues as regards the evaluation of facts and the assessment of appropriate compensation . The Court does not replace the domestic courts to determine the value of expropriated lands and settle the amounts to be awarded, unless there is a manifest arbitrariness in the process of fixing the compensation (see Yıltaş Yıldız Turistik Tesisleri A.Ş. v. Turkey , no. 30502/96, § 38 , 24 April 2003 ).

The Court observes in the instant cases that the applicants enjoyed an adversarial hearing where they were given opportunities to challenge expert submissions which they had deemed to be unjust and to request additional expert reports in the course of the proceedings. Moreover, the first-instance court evaluated all relevant evidence and provided sufficient reasoning as to why it had accepted the valuations of one expert report and not those of another. The Court therefore finds that there was no manifest unfairness in the process of fixing the levels of compensation which appear to be reasonably related to the value of the applicants ' land. For these reasons, it considers that the domestic court struck a fair balance in the determination of the applicants ' claims and did not leave the applicants with an individual and excessive burden .

Examining the second limb of the applicants ' complaint, the Court observes that the legal expenses in the proceedings borne by the parties were in accordance with the acceptance and dismissal of their claims. Given the fourth - instance nature of the complaint in relation to the domestic court ' s interpretation and application of law, the Court considers that the remainder of the applicants ' complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these parts of the applications must be declared inadmissible under Article 35 §§ 3 and 4 for being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants ' complaints concerning the excessive length of the court proceedings and the alleged absence of an effective domestic remedy in that respect ;

Declares the remainder of the application s inadmissible.

S tanley Naismith Françoise Tulkens Registrar President