Lexploria

SECOND SECTION

DECISION

Application no . 43362/04 Hidayet GÜMÜŞ against Turkey and 10 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 11 October 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.

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. Certain plots of land belonging to the applicants 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 because the domestic courts found that they were part of the public forest estate or had been formerly, pursuant to Section 2(B) of Law no. 6831. No compensation was awarded to the applicants.

5. The details of the applications are indicated in the table below.

Application no. and case name

Introduction date

Details of the land in dispute

Date on

which the proceedings were initiated

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

Articles invoked

43362/04

Gümüş

01/11/2004

Istanbul, Pendik,

Emirli Village,

Ağılaltı District,

Plot No. 10,

Parcel No. 738,

4.080 m 2

21/09/2000

16/04/2003 Pendik Civil Court,

E: 2000/573 K: 2003/252

02/03/2004

E: 2004/13235

K: 2004/2070

and

06/05/2004

Article 1 of Protocol no. 1

4517/06

Özdemir

21/01/2006

a) Balıkesir, Ayvalık, Bağyüzü Village,

Parcel No. 2,

62.400 m 2

b) Balıkesir, Ayvalık, Hacıveliler Village,

Parcel No. 129,

237.000 m 2

17/09/2003

06/08/2003

14/07/2004

Ayvalık Civil Court,

E: 2003/471

K: 2004/533

14/07/2004

Ayvalık Civil Court,

E: 2003/373

K: 2004/520

23/06/2005

E: 2005/5158

K: 2005/8459

and

23/07/2005

23/06/2005

E: 2005/5159

K: 2005/8458

and

23/07/2005

Article 1 of Protocol no. 1;

Article 6 § 1;

Article 8;

Article 13;

Article 17

Article 1 of Protocol no. 1 ;

Article 6 § 1;

Article 8;

Article 13;

Article 17

25878/07

Öztok

15/06/2007

Çanakkale,

Sarıcaeli Village,

Köycivarı District

Parcel no.772,

16500 m 2

10/05/2006

11/07/2006

Çanakkale Civil Court,

E : 2006/334

K : 2006/369

20/04/2007

E: 2007/4173

K: 2007/5312

Article 1 of Protocol no. 1;

Article 6 § 1;

Article 13

48475/07

Anıltaş İthalat İhracat Pazarlama ve Ambalaj Sanayi A.Ş.

15/10/2007

Yalova, Çınarcık,

Esenköy Village,

Çeşme District,

Block No. 4,

Parcel No. 2492,

77.077, 26 m 2

26/07/1999

21/06/2005

Yalova Civil Court,

E: 2004/37

K: 2005/1426

09/06/2006

E: 2006/5279

K: 2006/8124

and

20/09/2007

Article 1 of Protocol no. 1

54553/07

Gülsün

03/12/2007

Sinop, DuraÄŸan,

Ötegeçedüzlük District,

Block No. 155,

Plot No. 46-47 D-A,

Parcel No. 1,

172 m 2

28/11/2005

23/06/2006,

DuraÄŸan Civil Court,

E: 2005/97

K: 2006/77

12/06/2007

E: 2007/6677

K: 2007/8023

and

26/09/2007

Article 1 of Protocol no. 1;

Article 6 § 1

23258/08

Genç

08/05/2008

Trabzon, Maçka,

Ormanüstü Village,

Block No. 137,

Parcel No. 2,

3.654, 95 m 2

20/11/2002

17/10/2006,

Maçka Civil Court,

E: 2002/352

K: 2006/258

23/11/2007

E: 2007/13469

K: 2007/15063

and

17/12/2007

Article 1 of Protocol no. 1

36580/08

Kunter

28/07/2008

İstanbul, Silivri, 1. Bölge,

Büyükçavuşlu Village,

Ahmet Faki District,

Parcel no.803,

4900 m 2

24/10/2005

27/12/2006

Silivri Civil Court,

E : 2006/420

K : 2006/87

25/03/2008

E: 2008/1474

K: 2008/4667

Article 1 of Protocol No. 1;

Article 6

47356/08

TuÄŸtepe and Others

22/09/2008

Kocaeli, Gebze,

Pelitli Village,

Plot no.77

Parcel no.1692,

10460 m 2

06/10/2004

09/03/2007

Gebze Civil Court,

E : 2007/29

K : 2007/55

12/02/2008

E: 2007/18424

K: 2008/2078

and

31/03/2008

Article 1 of Protocol No. 1

52368/08

Konuklu

16/10/2008

Ä°stanbul, Silivri,

1. Bölge,

Büyükçavuşlu Village,

Sırameşeler District

I- Plot no.3

Parcel nos./ m 2

671/ 4081 m 2

672/ 2950 m 2

673/ 2950 m 2

II- Plot no.4

Parcel no.684,

3750 m 2

24/10/2005

28/06/2007

Silivri Civil Court,

E : 2006/287

K : 2007/332

07/04/2008

E: 2008/3166

K: 2008/5352

and

05/05/2008

Article 1 of Protocol No. 1;

Article 6

54187/08

Öztürkcan

04/11/2008

Ä°stanbul, Ãœmraniye,

Ömerli,

Plot no.6

Block no.35

Parcel no.19,

4449 m 2

19/01/2004

22/11/2005

Ãœmraniye Civil Court,

E: 2004/54

K: 2005/495

09/04/2008

E: 2008/3303

K: 2008/5690

and

06/05/2008

Article 1 of Protocol No. 1

5400/09

Küçükşen

17/12/2008

Ä°stanbul, Pendik,

Emirli Village,

KokoÄŸlu District,

Plot No. 5,

Parcel No. 825,

4.361,46 m 2

26/03/2004

14/12/2006

Pendik Civil Court,

E: 2004/157

K: 2006/527

14/05/2008

E: 2008/3322

K: 2008/7376

and

20/06/2008

Article 1 of Protocol no. 1;

Article 6 § 1;

Article 14:

Article 17

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 Savaşçın and Others v. Turkey (dec.), no. 15661/07, 7 June 2016.

COMPLAINTS

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

8. In some cases, the applicants raised further complaints relying on Articles 6, 8, 13, 14 and 17 of the Convention.

THE LAW

9. 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.

A. Alleged violation of Article 1 of Protocol No. 1 to the Convention

10. 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 the peaceful enjoyment of their possessions.

11. 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 the annulment of applicants ’ title deeds where the land at issue is classified as part of the public forest. Accordingly, they maintained that the applicants had not exhausted domestic remedies, as they had not made any application to the Compensation Commission.

12. 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.

13. 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.

14. 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.

15. In view of the above, the Court concludes that the applicants ’ complaints regarding the annulment of their title deeds should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

B. Other Alleged Violations of the Convention

16. In the applications nos. 4517/06, 25878/07, 54553/07, 36580/08, 52368/08 and 5400/09, the applicants also raised other complaints under various articles of the Convention. However, i n the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares inadmissible the applications.

Done in English and notified in writing on 17 November 2016 .

Hasan Bakırcı Nebojša Vučinić Deputy Registrar President

APPENDIX

No

Application No

Applicant ’ s name,

Date of birth and

Place of residence

Represented by

43362/04

Hidayet GÜMÜŞ

1929Istanbul

Bilal DAÄžTEKÄ°N

4517/06

Önder ÖZDEMİR

15/07/1954

Balıkesir

Vincent İŞİTMEZ

25878/07

Mustafa ÖZTOK

10/10/1966

Çanakkale

-

48475/07

ANILTAÅž Ä°THALAT Ä°HRACAT PAZARLAMA VE AMBALAJ SAN A.Åž.

Yalova

Saadet AYHAN

54553/07

Mahmut GÃœLSÃœN

3/04/1955

Sinop

Zeynel KADAYIFCI

23258/08

Ali Fahri GENÇ

1/02/1928

Trabzon

Ahmet Metin GENÇ

36580/08

Ahmet Mithat KUNTER

1/09/1951

Ä°stanbul

Ahmet BEKAR

47356/08

Vildan TUÄžTEPE

13/03/1951

Kocaeli

Nimet ALPASLAN

25/03/1938

Kocaeli

Huriye GÃœLÃœMSER

25/12/1919

Kocaeli

Kıymet TUNA

27/11/1944

Kocaeli

Ayten GÃœRLEYEN

52368/08

Hasibe KONUKLU

19/04/1942

Diyarbakır

Nazif YAVUZ

54187/08

Nahit ÖZTÜRKCAN

5/09/1951

I stanbul

Faruk ÖKSÜZ

5400/09

Yusuf KÜÇÜKŞEN

1/1/1933

Leiderdorp

Türkan YILMAZ

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GÜMÜŞ AND OTHERS v. TURKEY

GÜMÜŞ AND OTHERS v. TURKEY