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ŞARKAYA AND OTHERS v. TURKEY
Doc ref: 47497/08, 3492/09, 55534/09, 64630/09, 6630/10, 26034/10, 38645/10, 41917/10, 47477/10, 55043/10, 57... • ECHR ID: 001-170620
Document date: December 13, 2016
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ŞARKAYA AND OTHERS v. TURKEY
Doc ref: 47497/08, 3492/09, 55534/09, 64630/09, 6630/10, 26034/10, 38645/10, 41917/10, 47477/10, 55043/10, 57... • ECHR ID: 001-170620
Document date: December 13, 2016
Cited paragraphs only
SECOND SECTION
DECISION
Application no . 47497/08 Çiğdem ŞARKAYA and Afet SEÇKİN against Turkey and 14 other applications (see list appended)
The European Court of Human Rights (Second Section), sitting on 13 December 2016 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 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 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. In application no. 75193/10, the applicant, Mr Hikmet Kaya died on 14 March 2015 and on 29 June 2016 his heirs, Ms Leman Kaya, Mr Fikret Kaya and Mr Can Kaya indicated their wish to continue the application.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the cases
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 compensation proceedings before the civil courts. 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 mentioned below (paragraph 10) may be found in Paksoy and Others v. Turkey (( dec. ), no. 19474/10, 7 June 2016).
COMPLAINT
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.
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 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.
10. 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.
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 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.
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 Paksoy 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 19 January 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 compensation claim
Date and no. of the Court of Cassation ’ s final decision
47497/08
Şarkaya and Seçkin
26/09/2008
Çiğdem ŞARKAYA
1937Afet SEÇKİN
1934Suner DAÄžTEKÄ°N,
Antalya
Antalya, Merkez ,
Hurma District,
Block No. 12131
Parcel No. 3(old)/6-7(new)
1995
15/05/2007 Antalya Civil Court,
E. 2006/4
K. 2007/108
21/04/2008
E.2008/4092 K.2008/5199
3492/09
Arslan
05/01/2009
Gülseren ARSLAN
1940RuÅŸen ARSLAN, Istanbul
Adana, Seyhan ,
Kurttepe District
Plot No. 8284,
Parcel No. 3
04/12/1998
27/05/2008
Adana Civil Court,
E. 2008/139
K. 2008/188
27/04/2009
E.2009/2988 K. 2009/6374
55534/09
Kervan and Albayrak
09/09/2009
Hanife KERVAN
1943Feriha ALBAYRAK
1959Ferda KERVAN
1967Muhammet Cihat KERVAN
1968Sabiha KERVAN
1971Ali Nihat KERVAN
1973Ersoy GÃœNAY,
Istanbul
Kocaeli , Gebze ,
Muallimk öy District
Plot No. 31,
Parcel No. 1498
18/03/1998
13/02/2008
Gebze Civil Court,
E . 2007/214
K . 2008/71
17/02/2009
E.2009/169
K. 2009/2144
64630/09
Satan and Others
01/12/2009
Menduh SATAN
1965Mustafa TEKÄ°NALP
1951Fesih TEKÄ°NALP
1966Osman Kudret SÖNMEZ,
Ä°zmir
Ä°zmir, Bornova ,
Kazımdirik District
Block No. 3849
Parcel No. 1
1982
24/11/2008
Ä°zmir Civil Court,
E. 2007/346
K. 2008/392
19/10/2009
E.2009/11105 K.2009/12911
6630/10
Öğün
28/12/2009
Süleyman ÖĞÜN
1945Fatih ÖĞÜN
1948Şükran ÖĞÜN
1954Mürsel ÖĞÜN
1959Oktay POLAT,
Ankara
Ankara, Çankaya,
5 th District,
Block No. 6117,
Parcel No. 20
31/07/1987
10/06/2008,
Ankara Civil Court,
E. 2008/189
K. 2008/198
12/10/2009
E.2009/9267 K.2009/11911
26034/10
Köse
12/04/2010
Erol KÖSE
1951Şaban ÖZTÜRK,
Kayseri
Kayseri, Kocasinan , Argıncık District
Plot No. 449
Parcel No. 5180
28/12/2001
29/07/2008,
Kayseri Civil Court,
E. 2008/190
K. 2008/370
12/10/2009
E.2009/9921 K.2009/11813
38645/10
Güner
01/06/2010
Aytaç G Ü NER
1945Onur ULUOCAK,
Ä°stanbul
Osmaniye , Merkez ,
Raufbey District
Plot No. 4,
Block No. 37,
Parcel No.19
09/04/2003
24/02/2009
Osmaniye Civil Court,
E . 2008/362
K . 2009/74
21/12/2009
E.2009/16348 K. 2009/18226
41917/10
Poyraz
02/07/2010
Nesrin POYRAZ
1933Istanbul, Pendik ,
2 nd District ( Batı )
Plot No. 93,
Block No. 659,
Parcel No.51
31/01/2000
31/03/2009
Pendik Civil Court,
E . 2007/397
K . 2009/61
05/04/2010
E.2010/5201 K.2010/5620
47477/10
Bilgiç
28/06/2010
Nedim BİLGİÇ
1955Alper Tunga BACANLI,
Antalya
Antalya, Merkez ,
Hurma District
Block No. 12131,
Parcel No. 6
1998
03/12/2008
Antalya Civil Court,
E . 2007/200
K . 2008/538
01/03/2010
E.2009/16714 K.2010/3006
55043/10
Güven
29/07/2010
Turgut GÃœVEN
1948Ayça KAYA,
Ankara
Istanbul, Bağcılar ,
Mahmutbey District,
Plot no. 245 DS II-B,
Block no. 271,
Parcel No. 1
20/06/1990
02/05/2008
Bakırköy Civil Court,
E. 2007/583
K. 2008/221
05/04/2010
E.2010/4349
K. 2010/5725
57522/10
Tetik and Others
16/08/2010
Musa TETÄ°K
1943Hasan TETÄ°K
1953Aydin TETÄ°K
1966Bilal BEÄžENDÄ°
1953Cemal BEÄžENDÄ°
1958Nuriye AÅžIK
1958Fahriye ÇELİK
1962Fikriye YILDIRIM
1958Alev TETÄ°K HORUÅž,
Ankara
Ankara, Yenimahalle ,
3 rd District, Ergazi ,
Block No. 42990,
Parcel No. 1
26/02/1998
22/04/2008
Ankara Civil Court,
E. 2006/507
K. 2008/152
22/02/2010
E.2009/17998 K.2010/2471
60898/10
MeÅŸe
07/09/2010
Güllüzar MEŞE
1978İdris KÖYLÜ,
Antalya
Antalya, Merkez ,
3. Bölge ,
Block No. 7269,
Parcel No. 4
1989
04/11/2008
Antalya Civil Court,
E.2007/384
K.2008/344
14/06/2010
E.2010/6497 K.2010/11047
74534/10
Mercan and Orhan
19/10/2010
Kezban MERCAN
1927Fikriye MERCAN
1951Selahattin MERCAN
1959Seyfettin MERCAN
1953Sertap MERCAN
1955Ãœmit ORHAN
1975Mehmet ORHAN
1967Hulusi ORHAN
1965Ali GÖYMEN,
Ankara
Ankara, Yenimahalle , Çayyolu District,
Block no. 42026,
Parcel No. 1
1992
21/07/2009
Ankara Civil Court,
E. 2008/21
K. 2009/283
26/10/2010
E.2010/11746 K. 2010/18207
75193/10
Kaya
06/12/2010
Leman KAYA
1964Fikret KAYA
1984Can KAYA
1998H. Hüseyin B Ü BERAL,
Istanbul
Istanbul, Üsküdar , Kısıklı District,
Plot No. 161/1
Block No. 2461,
Parcels Nos. 1, 2 and 4
17/04/1995
17/12/2009
Üsküdar Civil Court,
E. 2009/678
K. 2009/257
01/11/2010
E.2010/12510K. 2010/18677
50327/12
Arı
25/05/2012
Bekir ARI
1959Izmir
Sibel Ünlü HASDEMİR,
Ä°zmir
Ä°zmir, AliaÄŸa ,
Köycivarı District
Plot No. 1
Parcel No. 5804
1975
24/02/2010
AliaÄŸa Civil Court,
E. 2009/326
K. 2010/84
25/10/2011
E.2011/11634 K.2011/17078
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