Lexploria

SECOND SECTION

DECISION

Application no . 17594/08 SARCAN and CAN against Turkey and 5 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 7 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 applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. Before the Court, they are represented by Mr A. Çağer, a lawyer practising in Diyarbakır.

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 3 August 1990 the administration expropriated plots of land belonging to the applicants. Following the applicants ’ request, the Birecik Civil Court of First Instance awarded additional compensation to them. These judgments were upheld by the Court of Cassation.

5. The applicants initiated enforcement proceedings.

6. According to the information in the case files, the administration has still not paid the full amounts.

7. The details of the applications may be found in the attached table.

B. Relevant domestic law

8. A description of the domestic law and practice with respect to the Compensation Commission mentioned below 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

9. Relying on Article 6 and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the financial loss they had suffered as a result of late payment of the expropriation amounts. In this connection, they further complained that the expropriation proceedings in question had not been concluded within a reasonable time and the domestic court decisions had not been fully enforced.

10. The applicants also stated under Article 6 of the Convention that the judgment of the Birecik Civil Court of First Instance lacked sufficient reasoning.

11. The applicants further complained under Article 2 of Protocol No. 7 to the Convention that there had been no review mechanism.

THE LAW

12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

A. As regards the application lodged by Mr Müslüm Sarcan (Application no. 17954/08)

13. The Court notes that one of the applicants in application no. 17954/08, namely Mr Müslüm Sarcan, had died on 7 May 2003 prior to the introduction of the present application with the Court. In this connection, the Court points out that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Macedonia Gavrielidou and Others v. Cyprus (dec.), no. 73802/01, 13 November 2003).

14. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and must be rejected in accordance with Article 35 § 4.

B. As to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention

15. Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the substantial delay in the enforcement proceedings and financial loss they had suffered as a result.

16. The Government noted that pursuant to Law no. 6384 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 applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

17. 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 decisions in the cases of 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) , the Court declared the applications 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 delay in enforcement proceedings and depreciation of awards in expropriation cases.

18. 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.

19. However, taking into account the Government ’ s supplementary 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 cases of Demiroğlu and Others and Yıldız and Yanak , cited above.

20. In view of the above, the Court concludes that this part of the applications should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies .

C. Remaining Complaints

21. The applicants alleged that the judgment of the first instance court lacked reasoning and that there had been no review mechanism. In this respect, they relied on Article 6 of the Convention and Article 2 of Protocol No. 7.

22. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the application are manifestly ill-founded and must be rejected in accordance with the 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 2 March 2017 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Nationality

Case specific details

17594/08

08/04/2008

Salih SARCAN

03/05/1945

Germany

German

Müslüm Sarcan

01/01/1950

Şanlıurfa

Turkish

Cuma Sarcan

01/02/1957

Mersin

Turkish

Ä°slim Can

05/03/1955

Mersin

Turkish

Plot no. 10

Birecik Civil Court of First Instance

28 September 2000

2000/945E

2000/2923K

34446/08

08/04/2008

Hamide DEMÄ°R

01/01/1937

Şanlıurfa

Turkish

Ahmet Demir

04/01/1953

Denmark

Danish

Salih Demir

01/01/1956

Denmark

Danish

Zeliha Tarhan

04/12/1958

Şanlıurfa

Turkish

Muhammed Demir

26/06/1970

Germany

Turkish

Emine Demir

02/06/1960

Denmark

Turkish

Fatma Demir

15/03/1962

Şanlıurfa

Turkish

Mehmet Emin Demir

05/03/1964

Şanlıurfa

Turkish

Rahime Demir

08/11/1971

Germany

Turkish

Abdulkerim Demir

01/04/1976

Şanlıurfa

Turkish

Plot no. 1687

Birecik Civil Court of First Instance

24 October 2000

2000/1280E

2000/3408K

34447/08

08/04/2008

Hamide DEMIR

01/01/1937

Şanlıurfa

Turkish

Ahmet Demir

04/01/1953

Denmark

Danish

Salih Demir

01/01/1956

Denmark

Danish

Zeliha Tarhan

04/12/1958

Şanlıurfa

Turkish

Muhammed Demir

26/06/1970

Germany

Turkish

Emine Demir

02/06/1960

Denmark

Turkish

Fatma Demir

15/03/1962

Şanlıurfa

Turkish

Mehmet Emin Demir

05/03/1964

Şanlıurfa

Turkish

Rahime Demir

08/11/1971

Germany

Turkish

Abdulkerim Demir

01/04/1976

Şanlıurfa

Turkish

Plot no. 1698

Birecik Civil Court of First Instance

24 October 2000

2000/1207E

2000/3407K

34454/08

08/04/2008

Fatma ÖZER

18/08/1970

Gaziantep

Turkish

Ayşe Özer

10/05/1989

Gaziantep

Turkish

Ahmet Özer

04/01/1965

Sanliurfa

Turkish

Beşire Özer

15/04/1979

Sanliurfa

Turkish

Fatma Yılmaz

20/09/1958

Sanliurfa

Turkish

Gazal Özer

05/01/1974

Sanliurfa

Turkish

Gülizar Derin

10/08/1976

Gaziantep

Turkish

Hanım Özer

14/11/1968

Sanliurfa

Turkish

Hasan Özer

01/03/1987

Gaziantep

Turkish

İsmail Özer

15/06/1977

Åžanliurfa

Turkish

Kadir Özer

17/03/1977

Åžanliurfa

Turkish

Medine Özer

01/09/1981

Åžanliurfa

Turkish

Mehmet Özer

30/11/1972

Germany

Turkish

Mehmet Özer

01/01/1928

Åžanliurfa

Turkish

Melihat Özer

06/04/1951

Åžanliurfa

Turkish

Nurten Özer

17/03/1973

Åžanliurfa

Turkish

Ãœlger Åženlik

06/03/1963

Gaziantep

Turkish

Rabia Deniz

17/03/1975

Åžanliurfa

Turkish

Reşit Özer

01/10/1969

Åžanliurfa

Turkish

Saliha Özer

10/08/1984

Gaziantep

Turkish

Zeliha Özer

10/07/1959

Åžanliurfa

Turkish

Zerife AkbaÅŸ

11/01/1956

Åžanliurfa

Turkish

Fatma Özer

10/08/1970

Gaziantep

Turkish

Kevey Özer

01/02/1940

Åžanliurfa

Turkish

Plot no. 282

Birecik Civil Court of First Instance

26 June 2006

2001/164E

2001/470K

34457/08

08/04/2008

Fatma ÖZER

10/08/1970

Gaziantep

Turkish

Ayşe Özer

10/05/1989

Gaziantep

Turkish

Ahmet Özer

04/01/1965

Åžanliurfa

Turkish

Beşire Özer

15/04/1979

Åžanliurfa

Turkish

Fatma Yılmaz

20/09/1958

Åžanliurfa

Turkish

Gazal Özer

05/01/1974

Åžanliurfa

Turkish

Gülizar Derin

10/08/1976

Gaziantep

Turkish

Hanım Özer

14/11/1968

Åžanliurfa

Turkish

Hasan Özer

01/03/1987

Gaziantep

Turkish

İsmail Özer

15/06/1977

Åžanliurfa

Turkish

Kadir Özer

17/03/1977

Åžanliurfa

Turkish

Medine Özer

01/09/1981

Åžanliurfa

Turkish

Mehmet Özer

01/01/1928

Åžanliurfa

Turkish

Melihat Özer

06/04/1951

Åžanliurfa

Turkish

Nurten Özer

17/03/1973

Åžanliurfa

Turkish

Ãœlger Åženlik

06/03/1963

Gaziantep

Turkish

Rabia Deniz

17/03/1975

Åžanliurfa

Turkish

Reşit Özer

01/10/1969

Åžanliurfa

Turkish

Saliha Özer

10/08/1984

Gaziantep

Turkish

Zeliha Özer

10/07/1959

Åžanliurfa

Turkish

Zerife AkbaÅŸ

11/01/1956

Åžanliurfa

Turkish

Bedir Özer

03/02/1950

Gaziantep

Turkish

Zeynep Özer

20/09/1958

Gaziantep

Turkish

Cuma Özer

12/02/1954

Gaziantep

Turkish

Ali Özer

01/01/1969

Åžanliurfa

Turkish

Cemal Özer

01/05/1964

Åžanliurfa

Turkish

Ayten Åžahin

01/01/1977

Åžanliurfa

Turkish

Kevey Özer

01/02/1940

Åžanliurfa

Turkish

Bayram Özer

01/01/1976

Åžanliurfa

Turkish

Plot no. 453

Birecik Civil Court of First Instance

24 October 2000

2001/467E

2001/563K

34471/08

08/04/2008

Fatma ÇOKKALENDER

22/07/1936

Åžanliurfa

Turkish

Emıne Can

12/01/1932

Åžanliurfa

Turkish

Aynizeliha Çokkalender

03/04/1954

Åžanliurfa

Turkish

Kahraman Çokkalender

01/01/1957

Åžanliurfa

Turkish

Müslüm Çokkalender

01/02/1963

Åžanliurfa

Turkish

Yüksel Can

02/02/1966

Åžanliurfa

Turkish

Abdulkadir Çokkalender

01/01/1973

Åžanliurfa

Turkish

Sıdıka Erdıl

05/02/1937

Åžanliurfa

Turkish

Keziban Çokkalender

01/01/1974

Åžanliurfa

Turkish

Mehmet Çokkalender

02/01/1961

Åžanliurfa

Turkish

Ayten Sarıçiçek

03/01/1964

Åžanliurfa

Turkish

Zeliha Çokkalender

12/01/1972

Åžanliurfa

Turkish

Plot no. 1736

Birecik Civil Court of First Instance

24 October 2000

2000/1233E

2000/3402K

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SARCAN AND OTHERS v. TURKEY

SARCAN AND OTHERS v. TURKEY

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