SECOND SECTION

DECISION

Application no . 35266/08 Mehmet Hanifi KAYA against Turkey

The European Court of Human Rights ( Second Section ), sitting on 7 July 2015 as a Committee composed of:

Nebojša Vučinić , President, Paul Lemmens , Egidijus Kūris , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 20 June 2008 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mehmet Hanifi Kaya , is a Turkish national, who was born in 1946 and lives in Gaziantep . He was represented before the Court by Mr M. Birlik , a lawyer practising in Şanlıurfa . The Turkish Government (“the Government”) were represented by their Agent .

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. On 4 February 1999 the applicant brought an action before the Nizip Civil Court of First Instance to obtain compensation for the de facto expropriation of his land.

4. On 30 December 1999 the court partially accepted the applicant ’ s case and awarded him 6,268,478,358 old Turkish liras (TRL) [1] .

5. Subsequently, on 22 May 2000 the Court of Cassation upheld this judgment.

6. On 7 January 2002 and 27 March 2008, respectively, the administration paid the applicant TRL 9,093,913,018 and 517, 0 37 new Turkish liras (TRY).

B. Relevant domestic law and practice

7. A description of the domestic law and practice with respect to the Compensation Commission mentioned below (paragraph 10) may 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 Y ı ld ı z and Yanak v. Turkey ( dec. ) , no. 44013/07, 27 May 2014.

COMPLAINTS

8. The applicant complained that the authorities ’ prolonged failure to fully comply with the binding and enforceable judgments in his favour violated his right to a court under Article 6 of the Convention . He further maintained, under Article 1 of Protocol No. 1, that the default interest paid on the compensation was insufficient and constituted a breach of his r ight to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1.

THE LAW

9. The applicant complained that the excessive delay in the payment of the c ompensation he was awarded following the de facto expropriation of his land , coupled with the low interest rates, had caused him to suffer a financial loss. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

10. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceed ings and the non- execution of judgments. The y 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 he had not made any application to the Compensation Commission.

11. The C ourt 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 v. Turkey ( ( dec. ), no. 44013/07, 27 May 2014 ) , the Court declared an application inadmissible on the ground that the applicants had fail ed 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.

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 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 and others (( dec. ), no. 4860/09, 26 March 2013).

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

For these reasons, the Court, unanimously,

Declares inadmissible the application.

Done in English and notified in writing on 3 September 2015 .

Abel Campos Nebojša Vučinić Deputy Registrar President

[1] . On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1= TRL 1,000,000.