SECOND SECTION

DECISION

Application no . 18947/09 Mehmet Emin BARAN 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 13 March 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, Mr Mehmet Emin Baran , is a Turkish national, who was born in 1958 and lives in Istanbul. He was represented before the Court by Ms F. Ä°riÅŸik , a lawyer practising in Mersin.

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 Evci Village, in the Tarsus District of Mersin, which had been registered in the land register as parcel no. 1150.

5. On 21 November 1996, the General Directorate of National Water Board ( Devlet Su İşleri Genel Müdürlüğü , hereinafter referred to as “the Directorate” ) decided to expropriate the applicant ’ s plot of land. However the applicant was not officially notified of the expropriation decision.

6. In the meantime, on an unspecified date, the Directorate started to use the plot of land for construction of an irrigation canal.

7. On 15 October 2004 the applicant brought an action before the Tarsus Civil Court of First Instance against the Directorate and sought compensation for de facto expropriation of his land.

8. On 9 June 2005 the Tarsus Civil Court of First Instance awarded the applicant an amount of 64,678.4 Turkish liras (TRY) with the maximum rate of default interest as provided in Article 46 of the Constitution running from the date when the case was introduced.

9. On 15 March 2007, following an appeal lodged by the Directorate, the Court of Cassation upheld the judgment by rectifying a legal error which, in its opinion, did not necessitate the reversal of the latter. In this regard the Court of Cassation ruled that the default interest should be applied to the applicant ’ s compensation award at the statutory rate and not at the maximum rate as provided for by Article 46 of the Constitution. The applicant did not file a request for rectification of the Court of Cassation ’ s decision dated 15 March 2007.

10. On 21 April 2007 the Directorate further applied to the Court of Cassation and requested rectification of its decision given on appeal. On 18 June 2007 the Court of Cassation rejected the Directorate ’ s request. Following the said rejection the case file was deposited with the Tarsus Civil Court of First Instance ’ s registry on 27 June 2007.

11. In the meantime, on 6 September 2006 the applicant submitted the copy of the judgment delivered by the Tarsus Civil Court of First Instance to the Mersin Enforcement Office and initiated enforcement proceedings. He also asked the enforcement office to apply the maximum interest rate to his compensation award pursuant to Article 46 of the Constitution.

12. On 16 September 2008 the Directorate paid a part of the compensation award, together with the statutory rate of default interest, to the applicant.

B. Relevant domestic law and practice

13. 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.”

14. 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

15. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention the applicant complained that the domestic courts ’ decision to apply the statutory rate of default interest instead of the maximum rate applicable to public debts, as defined in Article 46 of the Constitution, had breached his rights to a fair trial and to peaceful enjoyment of possessions. He alleged that this practice had led to a reduction in the amount of compensation payable to him.

THE LAW

16. The applicant complained that the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation award for his de facto expropriated land had caused him significant pecuniary losses. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in this respect.

17. The Government contested that argument.

18. 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 the 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).

19. In the present case, the applicant complained about the low interest rate applied to his compensation award. The Court observes that the interest rate applicable to the applicant ’ s compensation award for de facto expropriation of his property was determined by the Court of Cassation on 15 March 2007. Thus the final decision regarding the applicant ’ s complaint was the decision delivered on 15 March 2007 (see, mutadis mutandis , Sarıca and Dilaver v. Turkey , no. 11765/05, §§ 31-32, 27 May 2010) . The Court further notes that the applicant must have been aware of the final decision at the latest on 27 June 2007, when the case file was deposited with the first instance court ’ s registry. However, the present application was lodged with the Court on 13 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).

20. 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 inadmissible the application.

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

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President