SECOND SECTION

DECISION

Application no. 31706/07 Tahsin ÖZTÜRK against Turkey

The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Committee composed of:

Valeriu Griţco , President, Ivana Jelić , Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 19 July 2007,

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 Tahsin Öztürk, is a Turkish national, who was born in 1961 and lives in Amasya . He was represented before the Court by Mr E. Ertakuş , a lawyer practising in Amasya .

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

A. The circumstances of the case

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

4. In 2000, having lived in Switzerland for almost twenty one years, the applicant returned to Turkey, bringing with him a foreign registered car, which was placed in a customs warehouse on 5 May 2000. On the same date he applied to the Customs Office requesting that he be exempt from customs duty in respect of his car, pursuant to the legislation in force at the material time.

5. On 6 June 2001 the administration refused the applicant ’ s request on the ground that he had not fulfilled the requirements for exemption from customs duty. It held in this regard that the applicant had stayed in Turkey for more than six months in 2000.

6. On 22 June 2001 the applicant initiated proceedings before the Ankara Administrative Court (“the Administrative Court”), seeking the annulment of the administrative decision of 6 June 2001.

7. On 28 May 2002, the Administrative Court decided to annul the administrative decision of 6 June 2001, holding that the applicant was entitled to exemption from customs duty in respect of his foreign registered car. It noted in particular that, as the applicant had a medical report dated 14 July 2000 indicating that he should rest for a period of twenty-two days, this period should have been deducted from the 200 days that he had spent in Turkey in 2000.

8. On 26 June 2002 the applicant ’ s car was auctioned and sold to a third party. However, the money received from the auction was not paid to the applicant.

9. On 24 February 2004, the Supreme Administrative Court upheld the judgment of the Administrative Court.

10. On 12 July 2006, the Supreme Administrative Court dismissed the administration ’ s rectification request.

11. In the meantime, on various dates between 4 February 2003 and 10 January 2007, the applicant applied to the administration, seeking the enforcement of the Administrative Court ’ s judgment of 28 May 2002 by either the return of his car or the payment of the proceeds of the auction together with legal interest.

12. By letters of 7 November 2006 and 16 May 2007, the administration refused the applicant ’ s requests, holding in particular that the impugned judgment did not provide for the return of the car or the proceeds of the auction.

B. Relevant domestic law and practice

13. A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 16 below) may be found in DemiroÄŸlu and Others v. Turkey (( dec. ), no. 56125/10, 4 June 2013).

14. According to Article 12 of Law no. 2577 on administrative procedure, persons who have suffered damage as a result of an administrative act may bring an “action for a full remedy” ( tam yargı davası ) or a joint action both for annulment and for a full remedy before the administrative courts. They may also bring first an action for annulment and then, upon its conclusion, bring an action for a full remedy within the required time-limits.

COMPLAINT

15. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities had failed to comply with the judgment of the Administrative Court as they had neither returned his car to him nor paid him the proceeds of the auction together with legal interest.

THE LAW

16. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.

17. The Government further noted that the applicant had failed to bring an action for a full remedy before the administrative courts pursuant to Article 12 of Law no. 2577. In this regard, they submitted a judgment of the Supreme Administrative Court dated 27 June 2008, upholding a first ‑ instance judgment in which a person in a similar situation to the applicant had been awarded compensation following the auction of his foreign registered car by the administration.

18. The applicant maintained that he could not be expected to have brought further actions against the State for the non-enforcement of the domestic courts ’ judgments.

19. The Court observes that following the refusal of his request for exemption from customs duty in respect of his car, the applicant successfully lodged an action before the Administrative Court, requesting the annulment of the decision. The Administrative Court ’ s judgment was then upheld by the Supreme Administrative Court. However, as the car was auctioned, it was not returned to the applicant and the impugned judgement remained unenforced. Furthermore, the applicant was unable to recover the sum corresponding to the value of his car.

20. The Court considers that the main problems arising in the present case under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention were the non-enforcement of the impugned judgment and the applicant ’ s inability to recover the sum corresponding to the value of his car once it had been sold after the auction.

21. As regards the non-enforcement of the impugned judgment, 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 remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the failure of the authorities to enforce judicial decisions.

22. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 17), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.

23. However, taking into account the Government ’ s preliminary objection with regard to the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Demiroğlu and Others , cited above.

24. Therefore, the Court concludes that the applicant ’ s complaint regarding the non ‑ enforcement of the impugned judgment must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

25. As to the applicant ’ s inability to recover the sum corresponding to the value of his car, the Court observes that the applicant ’ s action with the Administrative Court were aimed solely at establishing whether he was entitled to exemption from customs duty in respect of his foreign registered car. Therefore, the impugned judgment did not concern compensation for the damage he had suffered on account of the sale of his car and his inability to recover the sum corresponding to its value. The Court further observes that, following the annulment of the administration ’ s decision of 6 June 2001 and the auction of his car, the applicant failed to bring compensation proceedings before the domestic courts pursuant to Article 12 of Law no. 2577. In this connection, the Court notes that the Government provided an example of a case in which a person in a similar situation to the applicant had been awarded compensation following the auction of his foreign registered car by the administration.

26. In view of the above, the Court considers that the applicant should have lodged a claim with the administrative courts in accordance with Article 12 of Law no. 2577 and requested compensation for the damage he had suffered on account of the sale of his car and his inability to recover the sum corresponding to its value.

27. It follows that this part of the application must also be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 May 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President