SECOND SECTION

DECISION

Application no . 53424/09 Sibel BAYSAL against Turkey

The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Committee composed of:

Nebojša Vučinić, President, Paul Lemmens, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 29 September 2009,

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, Ms Sibel Baysal, is a Turkish national, who was born in 1967 and lives in Istanbul. She was represented before the Court by Mr G. Baysal, a lawyer practising in Istanbul.

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. The applicant had a plot of land in Esenyurt, in the Büyükçekmece District of Istanbul, which had been registered in the land register as plot no. 1164 and parcel no. 6.

5. On an unspecified date, the Esenyurt Municipality ( hereinafter referred to as “the Municipality” ) started using the applicant ’ s land with a view to construction of a road.

6. On 22 February 2007 the applicant brought an action before the Büyükçekmece Civil Court of First Instance against the Municipality and sought compensation for de facto expropriation of her land.

7. On 27 December 2007 the Büyükçekmece Civil Court of First Instance awarded the applicant an amount of 87,216.5 Turkish liras (TRY) with a statutory rate of interest running from the date when the case was introduced. The applicant did not file an appeal against the judgment.

8. On 9 June 2008 and 6 November 2008 the Court of Cassation rejected the Municipality ’ s appeal and rectification requests, respectively. The final decision was served on the applicant on 15 December 2008.

9. In the meantime, on 9 July 2008 the applicant initiated enforcement proceedings before the Bakırköy Enforcement Office.

10. On 24 March 2010 and 27 May 2010 the applicant obtained partial payments from the Municipality. On 28 March 2011 the Municipality paid the compensation award in full, together with the statutory interest.

B. Relevant domestic law and practice

11. 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).

COMPLAINTS

12. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the delay in the payment of the compensation for de facto expropriation of her land.

13. Without invoking any particular provision of the Convention the applicant complained that there were no effective remedies in domestic law in respect of her complaint concerning the delayed payment of compensation award.

14. The applicant further complained under Article 1 of Protocol No. 1 to the Convention that the non-application of the maximum interest rate to her compensation award as provided for by Article 46 of the Constitution had breached her right to the peaceful enjoyment of her possessions.

THE LAW

A. As to Article 1 of Protocol No. 1 to the Convention (delayed execution of the judgment)

15. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the authorities delayed paying her the compensation amount awarded by the domestic courts.

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, the delayed execution of judgments and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as she had not made any application to the Compensation Commission.

17. 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 failure of the authorities to enforce judicial decisions.

18. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.

19. However, 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.

20. 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.

B. As to Article 13 of the Convention

21. The applicant also complained, without invoking a specific Convention provision, that there was no effective remedy under Turkish law to compel the administration to execute the court judgments and to enforce its debts. The Court considers that this complaint falls to be examined from the standpoint of Article 13 of the Convention.

22. The Government argued that there were effective remedies at the applicant ’ s disposal in domestic law for her complaint regarding the delayed enforcement of the judgment. They therefore invited the Court to find no violation of Article 13 of the Convention in the present case.

23. The Court recalls that the Compensation Commission established by Law no. 6384 provides for a remedy to the applicant within the meaning of Article 13 of the Convention to complain about the non-execution of domestic court decisions for the purposes of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (see Turgut and Others , ((dec.), no. 4860/09, §§ 59-60, 26 March 2013).

24. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other Complaint

25. Invoking Article 1 of Protocol No. 1 to the Convention, the applicant further complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation award for her de facto expropriated land had caused her significant pecuniary losses.

26. T he Court observes, in the present case, that the applicant did not file an appeal against the judgment of the Büyükçekmece Civil Court of First Instance which determined the type and the amount of compensation to be paid to the applicant for her de facto expropriated plot of land and the interest rate that should be applied. As the applicant failed to file an appeal before the Court of Cassation, she did not raise her complaint regarding the non-application of the maximum interest rate as provided in Article 46 of the Constitution, before the domestic authorities.

27. In the light of the foregoing the Court follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible .

Done in English and notified in writing on 18 January 2018 .

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President