SECOND SECTION

DECISION

Application no 14524/05 Hafize ÇALIŞKAN against Turkey and 5 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 25 April 2017 as a C ommittee composed of:

Paul Lemmens, President, Ksenija Turković , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application s lodged on the various dates indicated in the appended table ,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicants are Turkish nationals. Their names and birth dates, as well as the names of their representatives, appear in the appendix. In application no. 9180/08, one of the applicants, Mr Şakir Kırıştıoğlu died on 4 July 2013 and on 13 January 2015 his heirs, Ms Melahat Kırıştıoğlu , Mr Huriye Yahyaoğlu and Mr Şükran Yanık indicated their wish to continue the application.

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 applicants all own plots of land. Following local land development plans, their plots of land were designated for public use. Subsequently, complaining about the decrease in the market value of the land and long-term uncertainty about the fate of their plots of land, the applicants initiated proceedings before the domestic courts, seeking compensation and/or annulment of the local land development plans. Their cases were dismissed and as a result they were unable to obtain any redress from the authorities.

5 . The details of the applications are set out in the attached table.

B. Relevant domestic law and practice

6 . A description of the domestic law and practice with respect to the Compensation Commission (see paragraphs 13-14 below) may be found in Paksoy and Others v. Turkey (( dec. ), no. 19474/10, 7 June 2016).

COMPLAINTS

7 . The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the restrictions imposed on their land, their right to peaceful enjoyment of their possessions had been breached. In this connection, they claimed that the restrictions substantially decreased the market value of their land, caused uncertainty and restricted the use of their property. Furthermore, the applicants pointed out that because of the failure of the authorities to compensate them for damage resulting from the said interference, they had to bear an excessive burden.

8 . In applications nos. 14524/05 and 13984/06, relying on Article 6 § 1 of the Convention, the applicants also complained about the fairness of the proceedings.

THE LAW

9 . The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

A. Locus standi of Mr Şakir Kırıştıoğlu ’ s heirs

10 . In application no. 9180/08, one of the applicants, Mr Şakir Kırıştıoğlu passed away on 4 July 2013 while the case was pending before the Court, and his heirs, Ms Melahat Kırıştıoğlu , Mr Huriye Yahyaoğlu and Mr Şükran Yanık indicated their wish to pursue the application on his behalf (see paragraph 1 above) .

11 . The Court notes that it has not been disputed that the heirs are entitled to continue the application and that the application of Mr Şakir Kırıştıoğlu concerns a pecuniary right which is in principle transferable to them. In these circumstances, the Court sees no reason not to accede to their request (see Horváthová v. Slovakia , no. 74456/01, §§ 25-27, 17 May 2005; Donka Stefanova v. Bulgaria , no. 19256/03, § 11, 1 October 2009; and Ilieva and Others v. Bulgaria , no. 17705/05, § 24, 3 February 2015 ).

B. As to Article 1 of Protocol No. 1 to the Convention

12 . The applicants complained under Article 1 of Protocol No. 1 to the Convention that the restriction imposed on their land as a result of the local land development plans constituted a disproportionate burden and thus breached their right to peaceful enjoyment of their possessions.

13 . The Government noted that pursuant to Law no. 6384 of 9 January 2013 a new 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. They further noted that the competence of the Compensation Commission was subsequently enlarged by decrees adopted on 16 March 2014 and 9 March 2016 to examine complaints relating to, among other things, the alleged breaches of the right to peaceful enjoyment of possessions on account of applicants ’ inability to use their land as a result of restrictions imposed by the local land development plans. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

14 . The Court observes that, as pointed out by the Government, a new 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 Paksoy and Others v. Turkey (( dec. ), no. 19474/10, 7 June 2016), 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 restrictions imposed on the applicants ’ land because their land was designated for public use by local land development plan.

15 . The Court notes that in its decision 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.

16 . However, taking into account the Government ’ s preliminary objection with regard to the applicants ’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Paksoy and Others (cited above).

17 . In view of the above, the Court concludes that the applicants ’ complaints should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

C. As to Article 6 § 1 of the Convention

18 . In applications nos. 14524/05 and 13984/06, the applicants complained about the fairness of the proceedings under Article 6 § 1 of the Convention . However, 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 these complaints do not disclose any appearance of a violation of Article 6 § 1 of the Convention. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 18 May 2017 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President

APPENDIX

Application no. and case name

Introduction date

The applicant ’ s name and

date of birth

Name of the representative

Details of the land in dispute and the date on which the restriction was imposed on the land

Date and no. of the first-instance court decision that rejected the applicant ’ s claim

Date and no. of the final decision

14524/05

Çalışkan

16/04/2005

Hafize Ç alışkan

1930Suat S ert , Ä°zmir

İzmir, Çamdibi ,

Çamkule District

Plot No. 16,

Parcel No. 10880

18/02/1991

21/04/2004

Ä°zmir Civil Court,

E. 2003/1495

K. 2004/196

23/09/2004

Court of Cassation

E.2004/8006 K. 2004/8836

13984/06

Koçoğul ları

08/04/2006

Oğuzhan Koçoğulları

1960Ali Yavuz

Koçoğulları 1959

Suat Sert , Ä°zmir

Ä°zmir, Konak ,

Güzelyalı District

Plot No. 22L-4C,

Block No. 31464,

Parcel No. 15

30/07/1996

25/11/2004

Ä°zmir Civil Court,

E . 2004/451

K . 2004/635

23/09/2005

Court of Cassation

E.2005/9614

K. 2005/9808

15770/07

Hamat ErtuÄŸrul

16/01/2007

Faika H amat ( E rtuÄŸrul )

1930YaÅŸar D emirci ,

Ä°stanbul

Istanbul, Avcı lar ,

Firuzköy District

Plot No. 7,

Parcel No. 2678

07/06/1979

27/04/2005

Küçükçekmece Civil Court,

E. 2004/744

K. 2005/220

04/07/2006

Court of Cassation

E.2006/5067 K.2006/8368

55035/07

Öztürk

05/12/2007

Cemile Ö ztürk

1924Haluk Çelikel ,

Ordu

Ordu , Şahincili , Akyazı District

Plot No. 4,

Parcel No. 188

1992

30/12/2003,

Ordu Administrative Court,

E. 2003/234

K. 2003/902

15/06/2007

Supreme Administrative Court

E.2006/5419 K.2007/3649

9180/08

Kırıştıoğlu

15/02/2008

Murat Kırıştıoğlu 1952

Hüseyin Çetin

K ırıştıoğlu

1961Melahat Kırıştıoğlu 1946

Huriye Y ahyaoÄŸlu

1955Şükran Y anık

1977Adnan Y ıldız ,

Ä°stanbul

Ä°stanbul, Fatih,

Veledi KarabaÅŸ District

Plot No. 356,

Block No. 1398,

Parcel No.19

21/05/2005

30/11/2006

Fatih Civil Court,

E . 2006/147

K . 2006/323

26/11/2007

Court of Cassation

E.2007/12552 K. 2007/13747

58633/09

Altıntaş and Others

26/10/2009

Mükremin A ltıntaş

1942Belgin T açyıldız

1965Tülin S alıcı

1960Betül S olak

1964Tülay B irtane

1958Adil A ktay ,

Mersin

Mersin, Silifke ,

TaÅŸucu District

Parcel No. 5923

1990

11/09/2008

Silifke Civil Court,

E . 2004/340

K . 2008/235

30/04/2009

Court of Cassation

E. 2009/ 3390 K. 2009/6667