SECOND SECTION

DECISION

Application no. 14028/06 Turan KÖKSAL against Turkey

The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:

Valeriu Griţco , President, Egidijus Kūris , Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 22 March 2006,

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

1 . The applicant, Mr Turan Köksal, was a Turkish national, born in 1921. He died on 17 April 2009, after lodging the present application with the Court.

2 . On 6 April 2017 the application was communicated to the respondent Government.

3 . On 18 May 2017, the applicant ’ s legal heirs Ms Köksal and Ms Mercan , his widow and daughter, respectively, informed the Court of the applicant ’ s death and of their intention to pursue the application in his stead. They were represented before the Court by Mr D. Öztürkçü , a lawyer practising in Istanbul.

4 . The Turkish Government (“the Government”) were represented by their Agent.

5 . The facts of the case, as submitted by the parties, may be summarised as follows.

6 . On 4 May 1979 the Ministry of Public Works and Settlement (hereinafter “the Ministry”) expropriated several plots of land belonging to the applicant, as they were found to be within the scope of a slum prevention area. On 4 April 1980 an expropriation compensation of approximately 300,000 Turkish liras (TRL) was deposited with a bank account. On 12 June 1980 the applicant was informed that he could withdraw the sum deposited for the expropriation of his plots.

7 . Subsequently, the applicant initiated two separate sets of proceedings for the annulment of the expropriation and for additional compensation, respectively.

8 . On 15 June 1982 the Supreme Administrative Court dismissed the case for the annulment of the expropriation.

9 . As for the proceedings concerning additional compensation, on 2 June 1983 the Kartal Civil Court of General Jurisdiction accepted the applicant ’ s case and held that he should be paid TRL 1,625,610. That judgment became final on 29 February 1984.

10 . On an unspecified date the Ministry of Finance sent a letter to the Istanbul Revenue Office, requesting the payment of certain sums to the persons listed in its letter, which included the applicant and the sum awarded to him by the Kartal Civil Court. On 3 May 1984 the Istanbul Revenue Office responded to the Ministry, noting that the lump sum sent by the latter had not been sufficient to make all of the payments listed. It requested the Ministry to specify which of the persons listed would be covered by the sum sent.

11 . The documents in the case file do not demonstrate whether the administration actually took possession of the expropriated plots.

12 . Following a zoning act carried out in 1987, the area was divided into new plots, some of which were registered in the name of the applicant in the land register.

13 . In 1994 the Ministry brought a case for the annulment of the applicant ’ s title deed and requested the registration of the property at issue in its name ( tapu iptali ve tescil davası ), claiming that the registration to the applicant was unlawful as the property at issue had been expropriated before the zoning act.

14 . During the course of the proceedings, the applicant requested the Ministry to remove the expropriation annotation in the land register. Subsequently, in 1995 the Ministry accepted the applicant ’ s request, noting that the property at issue had been registered in his name following the zoning act and that a new procedure for its expropriation would place a burden on the administration. Accordingly, in 1996 the Istanbul Directorate of Public Works and Settlement decided to renounce the expropriation of the property.

15 . On 22 September 1998 the Kartal Civil Court dismissed the administration ’ s case on account of its decision to renounce the expropriation procedure.

16 . On 25 May 1999 the Court of Cassation upheld the judgment of the Civil Court. However, on 29 February 2000, after having assessed the Ministry ’ s rectification request, it quashed the judgment, stating that under the Expropriation Act the administration could not unilaterally renounce an expropriation decision which had become final and for which the relevant compensation had been determined.

17 . In line with the decision of the Court of Cassation, on 30 September 2004 the Kartal Civil Court accepted the case and held that the property at issue should be registered in the name of the administration. On 19 July 2005 the Court of Cassation upheld that judgment, finding that the applicant could not substantiate his claim regarding the authorities ’ failure to pay him the additional compensation. It noted that the applicant had not demonstrated that he had reimbursed the initial payment made to him either. The appellate court rejected the applicant ’ s request for rectification on 10 October 2005.

COMPLAINTS

18 . The applicant complained under Articles 6 and 13 of the Convention that the proceedings before the Kartal Civil Court regarding the annulment of his title deed had been unfair in that the domestic court lacked impartiality and had disregarded the principle of equality of arms.

19 . Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained of a violation of his right to peaceful enjoyment of his possessions, arguing that although he had not been paid the additional compensation determined in 1983, the domestic court annulled his title deed without taking account of that fact.

THE LAW

20 . Following the communication of the present application in 2017, the applicant ’ s widow and daughter, Ms Köksal and Ms Mercan , informed the Court of his death and requested to pursue the application in his name. They provided the Court with a decision of the Zara Magistrates ’ Court, delivered on 7 May 2009, which established that they were the only heirs of the applicant.

21 . The Government argued that Ms Köksal and Ms Mercan were not entitled to pursue the proceedings before the Court on the applicant ’ s behalf. They stated that the certificate of inheritance they had submitted was outdated as it had been delivered eight years before the communication of the application. In that connection, they contended that it could not be established with certainty whether there have been any changes in the status of the applicant ’ s successors. The Government considered accordingly that the application should be struck out of the list of cases.

22 . In response to the Government ’ s argument, the applicants ’ heirs submitted a certificate dated 15 January 2018 from the public register, which demonstrated that there have not been any changes in their situations as legal heirs of the applicant.

23 . The Court reiterates that where the applicant has died after the application was lodged, it has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and the cases cited therein).

24 . In the circumstances of the present case and in view of the documents submitted by the applicant ’ s heirs, the Court considers that Ms Köksal and Ms Mercan have the requisite locus standi under Article 34 of the Convention in respect of the applicant ’ s complaints. Consequently, the Government ’ s request for the case to be struck out should be dismissed (see Malhous v. the Czech Republic ( dec. ) [GC], no. 33071/96, ECHR 2000 ‑ XII). For practical reasons, Mr Köksal will continue to be called “the applicant” in this decision, although Ms Köksal and Ms Mercan are now to be regarded as such.

25 . The Government argued that the complaint was incompatible ratione temporis with Article 1 of Protocol No. 1 to the Convention, as both the expropriation of the applicant ’ s property and the judgment regarding the additional compensation had become final before 28 January 1987, the date Turkey had ratified the right of individual petition. They also stated that the applicant had failed to exhaust the domestic remedies in that he had not taken the necessary steps to have the judgment in his favour enforced. They further submitted that the complaint was inadmissible on account of non-exhaustion of domestic remedies as the applicant had not applied to the Compensation Commission established by Law no. 6384 of 19 January 2013. Lastly, the Government contended that the complaint was out of the six-month time-limit and that the applicant had not had a legitimate expectation.

26 . The applicant argued that he had never been paid the additional compensation determined by the Kartal Civil Court in 1984 and pointed out that the Government had not claimed otherwise in their observations either. He argued that in the absence of adequate compensation for the expropriation, he had been deprived of his property unlawfully by the annulment of the registration made in his name after the zoning act. In that connection, he challenged the finding of the domestic court in the proceedings regarding the annulment of his title deed and noted that under section 21 of the Expropriation Act, the administration could renounce its decision during the course of the expropriation proceedings.

27 . The Court notes at the outset that there is no dispute between the parties that the expropriation had been final when the property was re ‑ registered in the name of the applicant following the zoning act in 1987. In so far as the applicant challenged the Kartal Civil Court ’ s judgment and argued that the registration in his name had been valid as the expropriation decision had later been renounced, the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable ( see, among many others, Anheuser -Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I). I n the absence of any arbitrariness, the Court finds no reason to question the Kartal Civil Court ’ s finding regarding the annulment of the applicant ’ s title deed and the invalidity of the administration ’ s unilateral renouncement, which was based on the relevant provisions of the Expropriation Act.

28 . The Court considers therefore that the thrust of the applicant ’ s grievances concerns the alleged failure of the domestic authorities to enforce the judgment delivered by the Kartal Civil Court on 2 June 1983, whereby he had been awarded an additional compensation of TRL 1,625,610 for the expropriation of his property.

29 . As for the Government ’ s claim that the Court lacked temporal jurisdiction to deal with the alleged violation of the applicant ’ s right to peaceful enjoyment of his possessions, the Court considers that the applicant ’ s entitlement to enforcement subsisted subsequent to Turkey ’ s ratification of the right of individual petition and observes that the impugned non-enforcement has continued to date. The Government ’ s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must accordingly be rejected (see Krstić v. Serbia , no. 45394/06 , §§ 63-69, 10 December 2013) .

30 . In so far as the Government argued that the applicant had failed to exhaust domestic remedies as he had not initiated enforcement proceedings, the Court reiterates that a person who has obtained a final judgment against the State cannot be expected to bring separate enforcement proceedings (see Metaxas v. Greece , no. 8415/02, § 19, 27 May 2004; Lizanets v. Ukraine , no. 6725/03, § 43, 31 May 2007; and Yuriy Nikolayevich Ivanov v. Ukraine , no. 40450/04, § 46, 15 October 2009). In such cases, the defendant State authority which was duly notified of the judgment must take all necessary measures to comply with it or to transmit it to another competent authority for execution (see Burdov v. Russia (no. 2) , no. 33509/04, § 68, ECHR 2009). A successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt, be it during a voluntary execution of a judgment by the State or during its enforcement by compulsory means. Accordingly, it is not unreasonable that the authorities request the applicant to produce additional documents, such as bank details, to allow or speed up the execution of a judgment ( ibid., 69).

31 . The Court observes that in the present case the domestic authorities took the initial steps to have the judgment awarding the applicant additional compensation enforced (see paragraph 10 above). It notes, however, that the Government did not submit any documents to indicate that the enforcement proceedings had eventually been concluded. Nor did they argue that the applicant had failed to take a specific procedural step. Accordingly, the Court dismisses the Government ’ s objection under this head.

32 . Nevertheless, the Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Demiroğlu and Others v. Turkey (( dec. ), no. 56125/10, 4 June 2013), the Court declared the application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the authorities ’ failure to enforce judicial decisions.

33 . Taking into account the Government ’ s preliminary objection with regard to the applicant ’ s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Demiroğlu (cited above).

34 . In view of the above, the Court concludes that this part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

35 . The applicant also complained under Articles 6 and 13 of the Convention that the proceedings about the annulment of his title deed had not been fair.

36 . In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President