SECOND SECTION

DECISION

Application no s . 25631/09 and 26315/11 AyÅŸe GÃœLER and Others against Turkey and Kahraman BULUT and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 14 March 2017 as a Committee composed of:

Nebojša Vučinić , President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on 13 April 2009 and 14 December 2010 respectively,

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. Their names and birth dates, as well as the names of their representatives, appear in the appendix.

2. In application no. 25631/09, one of the applicants, namely Ms Ayşe Güler died on 4 June 2012. On 9 December 2016 her heirs, Ms Nurhan Güler ( Kayatürk ), Ms Nurcan Güler ( Hiştik ) and Ms Aycan Güler ( Çetindağ ) applied to continue the application in her stead.

3. In application no. 26315/ 11 , two of the applicants, namely Mr Atilla Bulut and Mr Mehmet Bulut died on 9 November 2009 and 30 September 2014 respectively. On 7 December 2016 their heirs, Ms Gülnihal Bulut , Ms Hülya Alptekin , Mr Kemal Bulut , Ms Ayla Karadağ , Ms Gülseren Kaplan, Mr İdris Bulut , Ms Nihayet Bulut , Mr Ozan Bulut , Ms Demet Bulut and Mr Muhammed Bilal Bulut indicated their wish to continue the application.

4. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case s

5. The facts of the case s , as submitted by the parties, may be summarised as follows.

6. The applicants 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 ma rket value of the land and long ‑ term uncertainty about the fate of their plots of land, the applicants initiated compensation proceedings before the civil courts and sought compensation. Their cases were dismissed and as a result they were unable to obtain any redress from the authorities.

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

B. Relevant domestic law and practice

8. A description of the domestic law and practice with respect to the Compensation Commission (see paragraph 12 below) may be found in Paksoy and Others v. Turkey (( dec. ), no. 19474/10, 7 June 2016).

COMPLAINT

9. 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.

THE LAW

10. 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.

11. 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.

12. The Government noted that pursuant to Law no. 6384 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.

13. 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.

14. 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.

15. 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).

16. 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 6 April 2017 .

Hasan Bakırcı Nebojša Vučinić 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, and date of the notification

25631/09

Güler and Others

13/04/2009

Nurhan Güler ( Kayatürk ), 1948

Nurcan Güler ( Hiştik ), 1950

Aycan Güler ( Çetindağ ), 1954

Tuncay Akıncı , İzmir

Ä°zmir, Konak , 2. KarataÅŸ District,

Plot No: 632,

Parcels Nos: 95, 96, 97, 110, 111, 113, and 114

7/11/1996

23/10/2007

Ä°zmir Civil Court,

E. 2006/307

K. 2007/402

13/10/2008

Court of Cassation

E.2008/9813 K.2008/11865

and

31/10/2008

26315/11

Bulut and Taşçı

14/12/2010

Kahraman Bulut , 1960

Ä°brahim Bulut , 1959

Necla Bulut , 1948

Türkan Taşçı , 1942

Gülnihal Bulut , 1945

Hülya Alptekin , 1970

Kemal Bulut , 1966

Ayla KaradaÄŸ , 1975

Gülseren Kaplan, 1964

Ä°dris Bulut , 1981

Nihayet Bulut , 1965

Ozan Bulut , 1978

Demet Bulut , 1982

Muhammed Bilal Bulut ,

2005Ramazan DaÄŸ ,

Şanlıurfa

Şanlıurfa , Merkez , Sancaktar District,

Block No: 808,

Parcel No. 1

2007

11/11/2009

Şanlıurfa Civil Court,

E . 2009/677

K . 2009/663

06/05/2010

Court of Cassation

E.2010/1774 K.2010/8143

and

15 June 2010