SECOND SECTION

DECISION

Application no. 49523/11 Bayrakdar ÖZDEMIR against Turkey

The European Court of Human Rights (Second Section), sitting on 5 March 2020 as a Committee composed of:

Ivana Jelić , President, Arnfinn Bårdsen , Darian Pavli, judges,

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above application lodged on 2 May 2011,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant ’ s details are set out in the appended table.

The applicant was represented by Ms I. Kozan , a lawyer practising in Istanbul.

The application concerns the refusal of the applicant ’ s compensation request for the loss of his property purchased from a certain person in the land registry, as a result of a court ’ s order which ruled that the land at issue could not be subject to private ownership. The applicant alleged that he relied on the land registry records in which there were no restrictions or specific annotation concerning the property in question.

The applicant complained under Article 1 of Protocol No. 1 to the Convention about the breach of his right to peaceful enjoyment of his possessions on account of the refusal of compensation for the annulment of his land ’ s title deed.

The application was communicated to the Turkish Government (“the Government”).

THE LAW

After the failed attempts to reach a friendly settlement, by a letter of 22 January 2020 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provides as follows:

“ The Government of Turkey acknowledges that in the present case there has been a violation of Article l of Protocol No. l, on account of the domestic courts ’ refusal of the applicant ’ s compensation claim for the loss of his property, which had been purchased relying on the records in the land register.

The Government thus offers to pay the applicant 1,250 (one thousand two hundred fifty euros) to cover any non-pecuniary damage, as well as costs and expenses. This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

The Government also emphasises that section 375 ( i ) of the Code of Civil Procedure (Law no. 6100 ), as amended by Law no.7145 of 3 1 July 20l8, now constitutes a ground for the reopening of civil proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of any just satisfaction claims the applicant might have in respect of pecuniary damage. ”

By a letter of 4 February 2020, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI).

The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the annulment of the applicant ’ s title deed to a land and the refusal of compensation for losses resulting from erroneous indication in the land register (see, for example, N.A. and Others v. Turkey , no. 37451/97, ECHR 2005 ‑ X; Turgut and Others v. Turkey , no. 1411/03, 8 July 2008; Ar ıoÄŸlu v. Turkey ( dec. ), no. 11166/05, 6 November 2012; and GürtaÅŸ Yapı Ticaret ve Pazarlama A. Åž. v. Turkey , no. 40896/05, 7 July 2015).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

The Court would also like to draw attention to the fact that on 25 July 2018 the Turkish Parliament adopted Law No. 7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court ’ s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court ’ s case ‑ law and practice, the re ‑ opening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach. In this connection, bearing in mind the Court ’ s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its Protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike the case out of the list .

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 26 March 2020 .

Liv Tigerstedt Ivana Jelić Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 1 of Protocol No. 1 to the Convention ( r ight to peaceful enjoyment of possessions )

Application no.

Date of introduction

Applicant ’ s name

Date of birth

Representative ’ s name

and location

Date of receipt of

Government ’ s declaration

Amount awarded for non-pecuniary damage and costs and expenses

per applicant

(in euros) [1]

49523/11

02/05/2011

Bayrakdar ÖZDEM İ R

20/11/1942

Kozan Ä°mge

Istanbul

22/01/2020

1,250

[1] . Plus any tax that may be chargeable to the applicants.