SECOND SECTION

DECISION

Application no . 7128/05 Cemil KAHRAMAN against Turkey

The European Court of Human Rights (Second Section), sitting on 15 March 2016 as a Committee composed of:

Paul Lemmens, President, Ksenija Turković , Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar ,

Having regard to the above application lodged on 18 January 2005,

Having regard to the partial decision of 27 January 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Cemil Kahraman , is a Turkish national, who was born in 1945 and lives in Çanakkale . He was represented before the Court by Mr M. Öztok , a lawyer practising in Çanakkale . The Turkish Government (“the Government”) were represented by their Agent .

A. The circumstances of the case

2. The applicant was the owner of two plots of land (plot nos. 343 and 357) in Çanakkale .

1. Proceedings concerning plot no. 357

3. On 19 September 1989 the applicant bought the plot in question and the title deed of the land was registered in his name. In 1990, following a cadastral surveying, the applicant ’ s land was classified as part of a public forest area.

4. On 21 May 1992 the applicant initiated proceedings before the Çanakkale Cadastral Court to have the results of the cadastral survey annulled.

5. During the proceedings, the court ordered an expert report and based on this report, it concluded that the land in question was part of the public forest area and accordingly on 22 December 1992 the claim was dismissed.

6. On 14 April and 29 September 1994 respectively, the applicant ’ s appeal and rectification requests were rejected by the Court of Cassation.

7. On 30 October 2002 the applicant requested the re-opening of the proceedings. He submitted that in another trial concerning another plot of land in Çanakkale , maps from 1935 and 1945 had been submitted to the Çanakkale Civil Court of First Instance. He argued that these maps should be regarded as new evidence and be taken into account for his case.

8. On 10 March 2004 the Çanakkale Cadastral Court rejected the applicant ’ s case and decided that there was no need for the re-opening of the proceedings. In its decision, the court held that the applicant ’ s land was classified as forest area in 1992 and that maps from 1935 and 1945 could not be considered as new evidence that sho uld be taken into account. On 9 November 2004 the Court of Cassation rejected the applicant ’ s appeal.

2. Proceedings concerning plot no. 343

9. In 1990, the forest administration conducted a cadastral survey and plot no. 343 was designated as part of the public forest area.

10. On 25 July 1995 the applicant bought the plot in question as there was no annotation in the land registry log book indicating that the land was part of the public forest area. Accordingly, the title deed of the land was registered in the applicant ’ s name.

11. On 14 April 2000, after learning of the cadastral survey, the applicant initiated proceedings before the Çanakkale Civil Court of First Instance to have the results of the cadastral survey annulled.

12. On 12 April 2007 the court dismissed the claim, holding that the land in dispute was indeed part of the public forest area. On 26 November 2007 that decision was upheld by the Court of Cassation.

13. Subsequently, on 23 March 2009 the forest administration initiated proceedings against the applicant to hav e his title deed annulled. On 1 July 2009 the Çanakkale Civil Court of First Instance annulled the title deed of the applicant and ordered that the impugned plot of land be registered in the name of the Treasury. The applicant ’ s appeal and rectification requests were subsequently rejected by the Court of Cassation and the decision became final on 7 June 2010.

B. Relevant domestic law

14. A descr iption of the relevant domestic law regarding the designation of lands as public forest area may be found in Köktepe v. Turkey, no. 35785/03, §§ 36-65, 22 July 2008; Altunay v. Turkey ( dec. ), no. 42936/07, §§ 20-27, 17 April 2012; and Arıoğlu and Others v. Turkey ( dec. ), no. 11166/05, §§ 9-18, 6 November 2012.

15. A description of the domestic law regarding the new remedy introduced by Law no. 6384 be found in Turgut and Others v. Turkey ( dec. ), no. 4860/09, 26 March 2013; Demiroğlu v. Turkey ( dec. ), no. 56125/10, 4 June 2013; and Yıldız and Yanak v. Turkey ( dec. ), no. 44013/07, 27 May 2014.

COMPLAINTS

16. The applicant alleged that his right to a fair trial under Article 6 § 1 of the Convention was breached as the proceedings before the Çanakkale Civil Court of First Instance regarding plot no. 343 had not been concluded within a reasonable time.

17. The applicant further complained under Article 1 of Protocol No. 1 to the Convention that his right to property had been violated by the respondent state. He claimed that although he had valid title deeds, he was deprived of his property without any compensation.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention concerning plot no. 343

18. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

19. 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. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he should avail himself of the remedy before the Compensation Commission.

20. 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 Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013), the Court declared an 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 length of proceedings.

21. 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.

22. However, taking into account the Government ’ s preliminary 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 Turgut , cited above.

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

24. The applicant complained that he was deprived of his property without any compensation.

1. Concerning plot no. 343

25. The Government submitted that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies, as the applicant should request compensation for his loss pursuant to Article 1007 of the Civil Code.

26. The Court observes that following its previous judgments on the subject, in November 2009 the Court of Cassation reversed its position on the application of Article 1007 of the Civil Code, thus allowing compensation to be paid to those who had been deprived of property forming part of a public forest area. The Court of Cassation confirmed that approach in several subsequent judgments. It later adopted a position on the time-limit for bringing a compensation claim and the method for calculating the amount to be awarded. Thus, a claim for compensation corresponding to the real value of the property could be brought within ten years from the date on which the judgment declaring the document of title void had become final. This remedy is now being used regularly (see Mehmet Altunay v. Turkey ( dec. ), no. 42936/07, §§ 25-27, 17 April 2012, and Ar ıoğlu and Others v. Turkey ( dec. ), no. 11166/05, §§ 15-16, 6 November 2012).

27. In this context the Court concluded in Mehmet Altunay ( cited above, §§ 32-38) and Ar ıoğlu and Others (cited above, §§ 26-33) that as a result of the recent changes in the domestic law, the applicants could seek redress before domestic courts. There is no reason to adopt a different approach in the present case. The Court observes that the decision annulling the applicant ’ s title deed became final in 2010, and therefore the applicant can still initiate proceedings before the domestic courts based on Article 1007 of the Civil Code within ten years from the date on which the final judgment depriving him of his property was served to him.

28. In view of the above, the Court concludes that the applicant should avail himself of the new remedy and that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Concerning plot no. 357

29. The Court takes note at the outset that the applicant ’ s land was classified as part of a public forest area in 1990 and that the domestic proceedings concerning this classification came to an end with the decision of the Court of Cassation of 29 September 1994. It was at that moment that the interference with the applicant ’ s right to property became final.

30. Insofar as the applicant complains about the refusal in 2004 to reopen the proceedings, the Court notes that the applicant ’ s request was rejected because of the absence of new elements, without a fresh examination of the substance of his claim based on the violation of his property right. That refusal cannot be considered as a fresh interference with the applicant ’ s right to property, as it does not affect the res judicata effect of the decisions taken in the earlier proceedings.

30. Accordingly, insofar as this part of the application is directed against the refusal to reopen the proceedings , it should be rejected for being incompatible ratione materiae with the provisions of the Convention , pursuant to Article 35 §§ 3 and 4 of the Convention.

31. Insofar as the applicant ’ s complaint must be understood as being in fact directed against the proceedings that ended with the judgment of the Court of Cassation of 29 September 1994, the Court notes that the application has been filed more than six months after that date. Furthermore, since the applicant ’ s request for the re-opening of the proceedings was rejected in 2004 without a fresh examination of the merits of the claim, it did not have the effect of restarting the running of the six-month period with respect to the earlier final decision (see Prystavska v. Ukraine ( dec. ), no. 21287/02, 17 December 2002; and Berdzenishvili v. Russia ( dec. ), no. 31697/03, ECHR 2004 ‑ II (extracts) ).

32. Consequently, even assuming that this part of the application is compatible with the provisions of the Convention, it should be rejected for non-compliance with the six-month time-limit in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the application.

Done in English and notified in writing on 7 April 2016 .

Abel Campos Paul Lemmens Deputy Registrar President