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GELİR AND OTHERS v. TURKEY

Doc ref: 3573/06;5985/07;49503/07;50856/07 • ECHR ID: 001-173519

Document date: March 28, 2017

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GELİR AND OTHERS v. TURKEY

Doc ref: 3573/06;5985/07;49503/07;50856/07 • ECHR ID: 001-173519

Document date: March 28, 2017

Cited paragraphs only

SECOND SECTION

DECISION

Application no . 3573/06 Mustafa GELÄ° R against Turkey and 3 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 28 March 2017 as a Committee composed of:

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

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

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.

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 were owners of plots of land which were designated as part of the public forest area. Subsequently, the applicants and/or the administrative authorities initiated proceedings before the domestic courts. Consequently, title deeds of the applicants were annulled and the plots of land in dispute were registered in the name of the Treasury. No compensation was awarded to the applicants.

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 mentioned below (paragraphs 10-11) may be found in Savaşçın and Others v. Turkey (( dec. ), no. 15661/07, 7 June 2016).

COMPLAINT

7. Under Article 1 of Protocol No. 1 to the Convention, the applicants complained that they were deprived of their property without any compensation.

THE LAW

8. 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.

9. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the annulment of their title deeds without any compensation constituted a disproportionate burden and thus breached their right to peaceful enjoyment of their possessions.

10. In their submission of 25 March 2016 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 the annulment of applicants ’ title deeds where the land at issue is classified as part of the public forest area. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

11. 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 Savaşçın and Others v. Turkey (( dec. ), no. 15661/07, 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 annulment of the applicants ’ title deeds because their land was classified as part of the public forest area.

12. 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.

13. 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 Savaşçın and Others , cited above.

14. 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.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 4 May 2017 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President

APPENDIX

Application no. and case name

Introduction date

The applicant ’ s

name, date of birth, and

place of residence

Represented by

Details of the land in dispute

Date and no. of the first-instance court decision that annulled the title deed to the land

Date and no. of the Court of Cassation ’ s final decision and notification date

3573/06

Gelir

04/01/2006

Mustafa Gelir ,

01/08/1958, Kayseri

Kayseri, Melikgazi, Kıranardı,

Plot No. 5,

Parcel No. 2486

Kayseri Cadastral Court,

17/03/2004

E: 2003/75

K: 2004/13

15/07/2005

E:2005/6874

K:2005/9931

and

26/07/2005

5985/07

01/02/2007

Ethem Su,

19/01/1945, Balıkesir

M. Cavit Tuna,

Balıkesir

Balıkesir, Burhaniye, Yunuslar,

Plot No. 4,

Parcel No. 807

Burhaniye Civil Court of First Instance,

13/07/1999

E: 1998/514

K: 1999/278

01/11/2006

E:2006/11720

K:2006/11439

and

20/11/2006

(delivered following the compensation proceedings initiated by the applicant)

49503/07

Kundakçı

08/11/2007

Hatice Kundakçı ,

05/04/1951,

Ä°zmir

Akif Kundakçı ,

Ä°zmir

İzmir, Buca, Kırıklar ,

Plot No. 10,

Parcel No. 630

Ä°zmir Civil Court of First Instance,

24/01/2006

E: 2002/592

K: 2006/6

12/04/2007

E:2007/3599

K:2007/4972

and

29/05/2007

50856/07

S.S. Deniz Kabuğu Sahil Arsa Konut Yapı Kooperatifi

08/11/2007

S.S. Deniz Kabuğu Sahil Arsa Konut Yapı Kooperatifi

Zühal Dönmez ,

Ankara

İzmir, Dikili, Çandarlı,

Parcel No. 1847

Dikili Civil Court of First Instance,

27/04/2000

E: 1999/38

K: 2000/76

19/11/2007

E:2007/13047

K:2007/14396

and

14/12/2007

(delivered following the compensation proceedings initiated by the applicant)

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