SECOND SECTION

DECISION

Application no. 32686/09 Sadiye ULUDAÄž and others against Turkey

The European Court of Human Rights (Second Section), sitting on 23 January 2018 as a Committee composed of:

Ledi Bianku , President, Nebojša Vučinić , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 16 March 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Turkish nationals and live in Mersin. Their names and birth dates appear in the appendix.

2. The applicants were represented by Mr A. Aktay , a lawyer practising in Mersin. 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. The applicants owned five plots of land in Yalınayak Village, in the Merkez District of Mersin, which had been registered in the land registry as plot no. 23-p and parcel nos. 48/1, 49/1, 50/2, 108/2, 109/1.

5. In 1998 the General Directorate of National Roads and Highways ( Karayolları Genel Müdürlüğü , hereinafter referred to as “the Directorate” ) started using the applicants ’ plots of land for the construction of a road .

6. On 18 March 2005 the applicants brought an action before the Mersin Civil Court of First Instance against the Directorate and requested compensation for de facto expropriation of their land.

7. On 1 February 2006 the Mersin Civil Court of First Instance awarded the applicants an amount of 991,812.61 Turkish liras (TRY) with statutory rate of default interest .

8. On 14 November 2006 the Court of Cassation upheld the judgment. On 1 March 2007 the Directorate ’ s rectification request was rejected by the Court of Cassation and the judgment became final. Following the proceedings before the Court of Cassation, the case file was deposited with the Mersin Civil Court of First Instance ’ s registry on 15 March 2007.

9. In the meantime, on 20 December 2006 the applicants submitted the copy of the judgment delivered by the Mersin Civil Court of First Instance to the Mersin Enforcement Office and initiated enforcement proceedings. They also asked the enforcement office to apply the maximum interest rate to their compensation award pursuant to Article 46 of the Constitution.

10. On 30 December 2008 the Directorate paid a part of the compensation award, together with the statutory rate of default interest.

B. Relevant domestic law and practice

11. The relevant parts of Article 46 of the Constitution, as amended on 3 October 2001, read as follows:

“Article 46:

...

The compensation for expropriation and the amount regarding its increase rendered by a final judgment shall be paid in cash and in advance. ...

...

An interest equivalent to the highest interest paid on public claims shall apply to the ... expropriation compensations which have not been paid for any reason .”

12. Section 32(1) of the Enforcement and Bankruptcy Act (Law no. 2004) provides that the enforcement office will issue an enforcement order to the debtor following the submission of a court judgment concerning any money debt. The same section further prescribes that the amount of money determined by the court judgment shall be specified in the enforcement order.

COMPLAINT

13. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained that the failure of the domestic courts to apply the highest interest rate as prescribed in Ar ticle 46 of the Constitution for the de facto expropriation of their land had breached their rights to a fair trial and to peaceful enjoyment of possessions. They alleged, in particular, that this practice had led to a reduction in the due compensation amount.

THE LAW

14. The applicants complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation awards for their de facto expropriated plots of land had caused them a significant pecuniary loss. They invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in this respect.

15. The Government contested that argument.

16. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter where it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies. It is not open to the Court to set aside the application of the six-month rule even in the absence of a relevant objection from the Government (see Belaousof and Others v. Greece , no. 66296/01, § 38, 27 May 2004; Miroshnik v. Ukraine , no. 75804/01, § 55, 27 November 2008; and Toner v. the United Kingdom ( dec. ), no. 8195/08, 15 February 2011).

17. In the present case, the applicants complained about the low interest rate applied to their compensation award. The Court observes that the Mersin Civil Court of First Instance determined the interest rate applicable to the applicants ’ compensation award for de facto expropriation of their property by a judgment of 1 February 2006 and the applicants ’ appeal against this judgment was rejected on 14 November 2006 . The Court therefore concludes that the final decision regarding the applicants ’ complaint was that of the Court of Cassation delivered on 14 November 2006 (see, mutadis mutandis , Sarıca and Dilaver v. Turkey , no. 11765/05, §§ 31-32, 27 May 2010) . The Court further notes that the applicants must have been aware of the final decision at the latest on 15 March 2007, when the case file was deposited with the first instance court ’ s registry. However, the present application was lodged with the Court on 16 March 2009, more than six months from that date (see Şat v. Turkey , no. 34993/05, §§ 16-18, 14 June 2011, and Gerçek and Others v. Turkey , no. 54223/08, §§ 16-18, 13 December 2011).

18. In view of the above, the Court concludes that the application has been introduced out of time and must be rejected 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 15 February 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President

Appendix