SECOND SECTION

DECISION

Application no . 43207/06 Fikri VURAL and others against Turkey

The European Court of Human Rights (Second Section), sitting on 28 February 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 application lodged on 12 October 2006,

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 Fikri Vural was a T urkish national who was born in 1930 and was represented before the Court by Mr. M. Aktas , a lawyer practicing in Kocaeli . Mr Vural died on 20 August 2008 after lodging the present application. Following the communication of the case, his heirs, namely Ms Şükran Ersoylu and Ms Nezahat Abaylı informed the Court that they wished to pursue the application in his stead. For practical reasons, Fikri Vural will continue to be called “the applicant” in this decision although his heirs are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and Çakar v. Turkey , no. 42741/98, § 2, 23 October 2003).

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. On 16 November 1999 several plots of land belonging to the applicant were expropriated by the Ministry of Public Works and Settlement.

5. On 22 September 2000 the applicant initiated proceedings before the Gölcük Civil Court of First Instance and asked for additional compensation.

6. On 6 September 2005 the first instance court partially granted the applicant ’ s claim and awarded 43,476 Turkish liras (TRY) (approximately 26,000 euros (EUR) at the time) with statutory interest running from 29 August 2000.

7. On 28 March 2006 this judgment was upheld by the Court of Cassation.

8. On 17 April 2006 the decision was served on the applicant.

9. The outstanding debt was paid to the applicant in two parts, namely on 28 February 2007 and 6 March 2008.

B. Relevant domestic law

10. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraphs 15-16) may be found in Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013); Demiroğlu and Others v. Turkey (( dec. ), no. 56125/10, 4 June 2013); and Yıldız and Yanak v. Turkey (( dec. ), no. 44013/07, 27 May 2014).

COMPLAINTS

11. The applicant complained that the additional compensation for expropriation, which he had obtained from the authorities after almost six years of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. In this connection, he i nvoked Article 6 of the Conventi on and Article 1 of Protocol No. 1 of the Convention.

12. The applicant further alleged under Article 6 of the Convention that he had not been awarded sufficient compensation for his land, as the domestic courts failed in the evaluation of evidence.

THE LAW

A. Complaints regarding the length of the proceedings and depreciation of the expropriation compensation

13. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained about the financial loss he had suffered as a result of the late payment of the expropriation amount and insufficient interest rates. The applicant further complained about the delay in the enforcement proceedings under Article 6 of the Convention.

14. The application was communicated under Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 of the Convention. However, t he Court will examine these complaints solely under Article 1 of Protocol No. 1 to the Convention (see, Cıbır v. Turkey , no. 49659/99, § 18 , 19 May 2004; Aslangiray and Others v. Turkey , no. 48262/99, § 28, 31 May 2005; Yetiş and Others v. Turkey, no. 40349/05, § 63, 6 July 2010; and Güleç and Armut v. Turkey ( dec. ), no. 25969/09, 16 November 2010 ).

15. The Government noted that pursuant to Law no. 6384 of 9 January 2013 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They further noted that the competence of the Compensation Commission was subsequently enlarged by a decree adopted on 16 March 2014 to examine complaints relating to, among other things, the alleged loss of value of the amount of the expropriation compensation due to the effects of inflation and the length of the proceedings. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

16. 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 Yıldız and Yanak (( dec. ), no. 44013/07, 27 May 2014), the Court declared an application inadmissible on the ground that the applicant 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 depreciation of awards in expropriation cases.

17. Taking into account the Government ’ s 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 Yıldız and Yanak (cited above).

18. 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. Remaining complaints

19. Relying on Article 6 of the Convention, the applicant alleged that the domestic courts had failed in their asses s ment of the evidence and that the compensation award had been insufficient .

20. The Court notes that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Paris and Others v. Romania [GC], no. 76943/11, § 90, 29 November 2016, ECHR 2016 (extracts)).

21. T he Court notes that that in the present case, the domestic courts ’ decisions were given on the basis of domestic law and the particular circumstances of the case. There is no element which might lead it to conclude that the domestic courts acted in an arbitrary or manifestly unreasonable manner in establishing the facts or interpreting the domestic law.

22. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 March 2017 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President