FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46745/99 by Pı nar GÜ NG Ö R against Turkey

The European Court of Human Rights (Fourth Section), sitting on 6 March 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Türmen , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta, judges , and Mrs F. Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 11 November 1998,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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, Mrs P ınar Gü ng ör, is a Turkish national who was born in 1937 and lives in Ankara . She was repres ented before the Court by Mr K. Berzeg, a lawyer practising in Ankara . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court .

A. 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 102.08 square metres of land, in a plot of 700 square metres (plot no. 15/A), in Kızılay Square , in the Çankaya district of Ankara. The plot in question is situated in front of the Soysal Business Centre, of which the applicant is a co-owner.

On 22 March 1994 the applicant brought an action for compensation against the Ankara Municipality ( Ankara Büyükşehir Belediyesi) before the Ankara Civil Court of First Instance. She submitted, inter alia , that the Ankara Municipality occupied plot no. 15/A illegally for the purposes of constructing a tube station in Kızılay Square . The applicant maintained that the Municipality neither conducted expropriation proceedings n or compensated her for the damage resulting from the de facto taking of her property . She requested to be paid the value of the plot in question. She also submitted an expert report dated 16 March 1994 in support of her claim. According to this report, the Municipality was in actual possession of plot no. 15/A.

The Municipality denied the allegations and argued that they had been in actual possession of plot no. 15/A since 1967. They therefore argued that the applicant ’ s action for compensation had to be rejected as being time-barred.

On 15 April 1994 the Ankara Municipality submitted a sketch plan to the Ankara Civil Court of First Instance according to which plot no. 15/A was situated next to two other plots of land belonging to the applicant and her co-owners and was left by the owners as an access area.

On 16 September 1994 the Ankara Civil Court of First Instance requested the Çankaya and Ankara Municipalities to submit information on whether plot no. 15/A was used by these municipalities.

On 5 October 1994 the Ankara Land Registry Directorate informed the Ankara Civil Court of First Instance that the applicant was one of the co-owners of plot no. 15/A and that, in the registry records, it was stated that the plot was “to be expropriated”.

On 7 October 1994 the Çankaya Municipality informed the first-instance court that the applicant ’ s land had been used by the Ankara Municipality since 16 March 1967.

On 18 November 1994 the Ankara Municipality informed the first ‑ instance court that there had been a de facto interference with the applicant ’ s co-ownership rights to plot no. 15/A by the Municipality during the construction of the tube station in Kızılay Square.

On an unspecified date, t he first-instance court ordered an expert report to be prepared in order to determine the value of plot no. 15/A.

On 8 April 1996 a committee of experts submitted a report to the Ankara Civil Court of First Instance . According to the experts ’ report, the Municipality was in actual possession of plot no. 15/A although the applicant was identified as the co-owner of the plot in the land registry records. The experts stated that the value of the land that the applicant co-owned was 7,145,600,000 Turkish liras (TRL) (258,273 euros (EUR)).

On 17 March 1997 the Ankara Municipality informed the Ankara Civil Court of First Instance that plot no. 15/A, which was located in front of the Soysal Business Centre, had been used during the construction of the tube station with a view to ensuring the security of the surrounding area. Following the lodging of the case by the applicant, they separated the plot from the entrance to the tube station by means of a wall and restored the plot to its original state by paving it.

On 30 April 1997 another expert report was drafted. According to this report, plot no. 15/A had been used during the construction of the tube station in Kızılay Square in order to ensure the security of the neighbouring buildings. The report further indicated that the plot in question had been paved by the Municipality and that it was used as a pedestrian area.

On 7 July 1997 the Ankara Civil Court of First Instance held that the Ankara Municipality had been in actual possession of the land since 1967. It accordingly rejected the case as having been introduced outside the statutory time -limit laid down by the Expropriation Act ( Law no. 2942 ).

The applicant appealed.

On 23 February 1998 the Court of Cassation rendered its decision. It observed that according to the local master building and settlement plan (imar planı) , plot no. 15/A was used as an access area for the surrounding buildings. The Court of Cassation considered that the administration could not therefore be considered to be in actual possession of the plot. It further held that the legal reasoning of the first-instance court was erroneous since plot no. 15/A had only been used to ensure the neighbouring buildings ’ security during the construction of the tube station and that there had been no interference with the plot afterwards. The Court of Cassation based its assessment on the expert report of 30 April 1997 . It nevertheless agreed with the Ankara Civil Court of First Instance that the case should be dismissed and upheld the judgment of 7 July 1997, but for different reasons.

On 13 May 1998 the Court of Cassation dismissed the applicant ’ s request for rectification of the decision of 23 February 1998 .

On 9 June 1998 the decision of 13 May 1998 was served on the applicant.

B. Documents submitted by the applicant

1 . A photocopy of the page of the land registry record concerning plot no. 15/A

It appears from this document that the applicant is one of the co-owners of plot no. 15/A.

2. The judgment of 23 May 1977

According to the judgment of the Ankara Civil Court of First Instance of 23 May 1977, on 24 June 1964 the Ankara Municipality brought an action against the applicant ’ s and her co-owners ’ heirs and requested that the title to plot no. 15/A be transferred to it. The court dismissed the case.

3. Letter from the Ankara Municipalit y to Zeki Güngör, dated 2 March 1992

The Municipality informed one of the applicant ’ s co-owners, Zeki Güngör, that plot no. 15/A was the front access area of the buildings next to the plot and that construction of a building on the plot was not possible.

4. Letter from the Ankara Municipality to the Soysal Business Centre Directorate, dated 3 February 1993

The Municipality proposed that the Soysal Business Centre Directorate transfer the title to plot no. 15/A to it free of charge. It further proposed that the Municipality would, in return, construct one of the exits of the tube station in the Business Centre - which would normally cost 300,000 US dollars (USD) - free of charge.

C. Relevant domestic law

Article 13 of Law no . 2577 on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administration may request compensation from the administration. In the event of complete or partial rejection of a compensation request, or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.

COMPLAINTS

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that she had been deprived of her land in circumstances incompatible with the requirements of Article 1 of Protocol No. 1. She allege d that the unlawful interference with her land and the decisions of the domestic courts had violated her right to property.

THE LAW

The applicant maintained that in March 1994 the Ankara Municipality took actual possession of plot no. 15/A, of which she is a co-owner, without compensating her for the damage resulting from the de facto taking of her property and that the domestic courts had failed to assess the facts of the case correctly. She invoked Article 6 and Article 1 of Protocol No. 1.

The Court considers that the applicant ’ s complaints should be examined from the standpoint of Article 1 of Protocol No. 1 alone which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Submissions of the parties

The Government asked the Court, firstly, to dismiss the application for failure to comply with the six-months ’ time-limit under Article 35 § 1 of the Convention. For the purposes of that provision, time had started to run on 23 February 1998, the date on which the Court of Cassation had dismissed the applicant ’ s appeal. They submitted that an application for rectification of a judgment under Turkish law was an extraordinary remedy.

The Government further submitted that the applicant had failed to exhaust all domestic remedies given that she had not availed herself of the other civil and administrative remedies available in domestic law . They argued, in particular, that the applicant could have brought an action before the administrative courts and requested compensation for the alleged damage she had suffered.

As regards the merits of the application, the Government contended that there had been no interference with the applicant ’ s right to property as plot no. 15/A had been used as a road since 1967. They argued that even assuming that there had been an interference, in the light of the Court of Cassation ’ s decision it could not be considered a violation of Article 1 of Protocol No. 1.

The applicant maintained in reply that she had c omplied with the six month rule since an application for rectification of a judgment under Turkish law was an effective remedy. The applicant further contended that she had filed her case with the Ankara Civil Court of First Instance in accordance with domestic practice and that she was not required to apply to the administrative courts.

As regards the merits of the application, the applicant submitted that the Ankara Municipality had taken actual possession of plot no. 15/A and that she had not been compensated for the loss of her property.

B. The Court ’ s assessment

As regards the Government ’ s submission that the applicant failed to comply with the six - months ’ time-limit, the Court reiterates that the present case concerns civil proceedings and that the remedy of rectification of judgments in Turkey constitutes an effective domestic remedy within the meaning of generally recognised international law principles (see Molin Inşaat v. Turkey , no. 23762/94, Commission decision of 7 September 1995). Thus, the date of notification of the Court of Cassation ’ s decision upon appeal cannot be taken as the starting point for the determination of the six-month s ’ time-limit. In the present case, it started to run from the date on which the applicant was notified of the outcome of his request for rectification , namely on 9 June 1998 . The Government ’ s objection on ground of non-compliance with the six-month rule should therefore be rejected.

The Court will next determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention .

In this connection, the Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts. T he rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see, among others, İ ç yer v. Turkey (dec.), no. 18888/02, 12 January 2006).

In the instant case, the Court notes, at the outset, that the applicant filed a case with the Ankara Civil Court of First Instance and claimed that she had been unlawfully deprived of her possessions by the Ankara Municipality . She maintained the same claim in her application to the Court. In support of her complaint, the applicant submitted that plot no. 15/A had been paved by the Municipality and was used as a pedestrian area.

The Court however observes, from the documents submitted to it, that between 1967 and 1994 plot no. 15/A was reserved as an access area for the Soysal Business Centre, of which the applicant is a co-owner. It had therefore been used as a public area before the construction of the Kızılay tube station and there is no evidence in the case file demonstrating that the nature of the use of plot no. 15/A at that time was against the wishes of the owners of the Soysal Business Centre including the applicant. Furthermore, according to the information submitted to the first-instance court by the Municipality on 17 March 1997, following the lodging of the case, the Municipality restored the plot to its original state.

In these circumstances, the Court finds that the Ankara Municipality used plot no. 15/A during the construction of the tube station between 1994 and 1997. However, the applicant, who is one of the co-owners of plot no. 15/A, as well as of the neighbouring plots and the Soysal Business Centre, was at no time deprived of her property.

In this regard, the Court observes that in dismissing the applicant ’ s appeal, the Court of Cassation also recognised the applicant ’ s co-ownership of plot no. 15/A and acknowledged that the Municipality had actually occupied the plot in question between 1994 and 1997 for security reasons.

Having regard to the fact that the Ankara Municipality vacated plot no. 15/A before 17 March 1997 and to the Court of Cassation ’ s findings, the Court considers that, in accordance with Article 13 of Law no. 2577 on administrative procedure, the applicant could and should have lodged a claim with the administrative courts and requested compensation for the damage she had allegedly suffered on account of the Municipality ’ s interference with her ownership rights to plot no. 15/A between 1994 and 1997. She however failed to do so.

It follows that the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. The application of Article 29 § 3 of the Convention to the case should therefore be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

FatoÅŸ Aracı Nicolas Bratza              Deputy Registrar President