Resolution CM/ ResDH ( 2013) 254 Özbek against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

25327/04

ÖZBEK

27/05/2010

27/08/2010

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document ( DH-DD(2013)431 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of European Court of Human Rights

Judgment in the case of Özbek v. Turkey (25327/04) dated 27 May 2010

ACTION REPORT

A. FACTS

The applicant Nuri Ö zbek had initiated compensation proceedings for the unlawful occupation of his land. He complained that he had been deprived of his right to property due to the dismissal of these proceedings.

B. CONTENT OF THE JUDGMENT

With its judgment dated 27 May 2010, the European Court of Human Rights ("the Court") found the applicant's complaint reasonable. The Court stated that the unlawful occupation of the applicant's land by the Military Forces and not being paid any compensation for it was in violation of the right to prope r ty.

The Court did not award the applicant any compensation since the applicant had not made a claim for it.

C. INDIVIDUAL MEASURES

1 - Damages and Court e xpenses

Re-opening of a hearing is regulated by Article 375 in the Code of Civil Procedure. According to th is regulation, the applicant should apply for the reopening of the trial within 3 months after the arrival of legal notification of the ECtHR's judgement. The applicant had not applied for the renewal of the trial even though he had the opportunity to do so. It should also be emphasised that the re-opening of judicial proceedings can only be initiated with a claim made to that effect by the applicant himself.

2 - Removal of the Fences and Returning of the Land to the Applicant

The fences that surrounded the applicant's land have been removed and the land in question was excluded from the military zone. The applicant was informed of this situation with the letter of the 3'd Corps Commandership dated 17 January 2002.

D. GENERAL MEASURES

1 - Translation and p ublication of the j udgment

The Ö zbek judgment was translated into Turkish and published on the official website of Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/ozbek.pdf .

In addition, the translation of the judgment was sent primarily to the court that rendered the judgment and to the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Human Rights Department of the Prime Ministry, the Constitutional Co urt, the Court of Cassation, the Ministry of Interior, and the Ministry of Finance.

2 - Individual a pplication before the Constitutional Court

Individual application was introduced into the Turkish legal system by the 20 10 constitutional amendments, and since 23 September 2012, the Constitutional Court has been receiving applications. Article 148 of the Constitution stipulates that anyone who thinks that his/her constitutional rights set forth in the European Convention on Human Rights have been infringed by a public authority will have a right to apply to the Constitutional Court after exhausting other domestic remedies.

After examination, the Constitutional Court decides whether the fundamental rights of the applicant have been violated or not. If it finds violation, it may also decide what should be done in order to redress the violation and its consequences.

In case the violation has been caused by a court decision, the Constitutional Court sends the file to the competent court for retrial in order to restore the fundamental rights of the applicant. But, if the Constitutional Court deems that there will be no use of a re-trial, then it may award compensation to the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages s/he suffered.

3 - Training and Awareness Raising Activities

On 21-22 May 2012 and 24-25 May 2012, the High Council of Judges and Prosecutors and Justice Academy of Turkey organi s ed a training sessions under "In-Service Training on Expropriation Cases" in Ankara for the judges who hear expropriation cases. The participants were provided with training on "Trial Procedure in Expropriation Law, Confiscating without Expropriating and Evaluation of the ECtHR Judgments". T h is training session raised the awareness of participants on the evolving case-law of the ECtHR who were the judges who hear expropriation cases.

E. EXECUTION OF THE JUDGMENT

The Government firstly underlines the fact that the case is of an isolated nature and the case does not stem from a systemic problem. Secondly, the Government maintains that Turkey has taken all the necessary general measures and that no further individual measure is needed for the execution of the Nuri Ö zbek judgment. The Government therefore respectfully invites the Committee of Ministers to close the examination of the case.