SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27747/02 
by Elif AKIN and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on 29 January 2008 as a Chamber composed of:

Françoise Tulkens, President, 
 Ireneu Cabral Barreto, 
 Rıza Türmen, 
 Mindia Ugrekhelidze, 
 Vladimiro Zagrebelsky, 
 Antonella Mularoni, 
 Dragoljub Popović, judges, 
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 19 April 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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, Ms Elif Akın, Ms Özlem Ünal, Ms Yeşim Tayfur, Ms Emel Koşkun, Ms Halime Akın, Mr Mehmet Ünsal Akın, Ms Gönül Akın and Mr Vural Akın, are Turkish nationals who were born in 1973, 1972, 1971, 1949, 1925, 1978, 1946 and 1951 respectively, and live in Turkey. They are represented before the Court by Mr B. Orta, a lawyer practising in Tekirdağ.

A.  The circumstances of the case

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

3.  On 23 August 2000 the General Directorate of Roads and Highways expropriated four plots of land belonging to the applicants in the Seymen village of Çorlu, for a highway construction. The Directorate assessed the value of the land and paid the applicants 5,000,000 Turkish Liras (TRL) per square metre.

4.  On 1 September 2000, i.e., within the 30-day prescription period, the applicants brought an action before the Çorlu Civil Court for increased compensation, requesting 12,000,000 TRL per square metre.

5.  The court appointed a committee of experts, who conducted an on-site property inspection on 3 November 2000. They found that the land had been significantly undervalued and assessed it at 34,000,000 TRL per square metre.

6.  Given the considerable discrepancy between this evaluation and that of the administration, the court appointed another committee of experts. This new committee conducted an examination on 15 December 2000 and valued the land at 22,000,000 TRL per square metre.

7.  On 8 January 2001 the applicants filed a petition with the same court for “amendment” (ıslah) of their claim. They argued that they had been unaware of the real value of their property revealed by the expert reports. On that basis, they requested that their original claim be increased to 22,000,000 TRL per square metre, relying on the lower of the two expert assessments.

8.  On 16 February 2001 the court denied the request. It held that the petition had been filed outside of the 30-day period stipulated for expropriation-related compensation cases.

9.  Ruling on the merits, the court first examined the expert reports. It found that they were consistent with the evidence in the case file as well as the records of the mayor’s office. It further found that they had duly taken into account the factors affecting the value of the expropriated property.

10.  Nonetheless, the court disregarded the experts’ valuations. It reasoned that both assessments exceeded the applicants’ claim, and thus, it sufficed to award the amount of compensation originally claimed. It also explained that it was unnecessary to require a third expert valuation with a view to reconciling the earlier two.

11.  The applicants appealed. They relied on a Constitutional Court decision dated 20 July 1999. The decision had reviewed the constitutionality of the last sentence of Article 87 of the Code of Civil Procedure, which read as follows:

“Article 87: The plaintiff cannot increase his claim through amendment (ıslah).”

12.  Declaring that sentence unconstitutional and a nullity, the Constitutional Court had reasoned:

“The [local] court requesting the review maintained that the impugned rule was contrary to Article 141 of the Constitution as it forces plaintiffs to initiate a new case and unduly burdens the judiciary.

...

By not allowing a claim to be increased through amendment, the impugned rule prevents cases from being resolved as promptly and cost-effectively as possible, and thereby violates Article 141 of the Constitution.

...

The rule that prevents plaintiffs from increasing their original claims through ‘amendment’ is contrary to the principle of the rule of law as it makes it unduly difficult to claim a right.

...

The impugned rule forces a plaintiff to reinitiate the case from the very beginning and as such, it restricts the freedom to seek a legal remedy.

...

As the rule prevents plaintiffs from receiving redress as promptly and cost-effectively as possible, it significantly impedes the freedom to seek a legal remedy, which is irreconcilable with the requirements of a democratic society...”

13.  On 20 September 2001 the Court of Cassation upheld the civil court’s judgment. It relied on a different reasoning. Instead of discussing whether or not the petition for “amendment” had been filed on time, it held that:

“By requesting 12,000,000 TRL per square metre, the plaintiffs have bound themselves. They are not allowed to increase that amount even through amendment.

The fact that the last sentence of Article 87 of the Code of Civil Procedure had been nullified by the Constitutional Court has no applicability in this particular context.”

14.  On 22 October 2001 the decision was notified to the applicants.

B.  Relevant domestic law and practice

1.  Relevant legislation

15.  Article 141 of the Turkish Constitution:

“Article 141: ... It is the duty of the judiciary to conclude trials as quickly as possible and at minimum expense.”

16.  The relevant provisions of the Code of Civil Procedure:

“Article 83: Either of the parties may partly or entirely rectify a procedural act. Each party may use the right of rectification only once within a case.”

“Article 84: For cases subject to investigation, rectification may be made until the end of the investigation, for all other cases, it may be made until the end of the trial.”

17.  Article 14 of the Expropriation Act:

“Right of action

Article 14: The owner ... of an expropriated property may, within thirty days from the notification [of an expropriation], file an action to ... challenge the amount of compensation assessed [by the authorities].”

2.  Relevant case-law

18. In a case concerning the plaintiff’s inability to increase his claim through amendment (ıslah) (file no. 2004/28705, decision no. 2005/9379), the 5th Chamber of the Court of Cassation ruled, in its judgment dated 2 April 2002, that the plaintiff was bound by his original claim. In its opinion, the fact that the Constitutional Court annulled Article 87 of the Code on Civil Procedure did not give the plaintiff a new right as long as he did not bring a partial action (kısmi dava). Under Turkish law, a “partial action” was brought when the plaintiff made a partial claim and stated in his petition that he reserved his further rights, i.e. the right to increase his claim.

19.  In a case concerning the plaintiff’s request for pecuniary and non-pecuniary compensation for having suffered bodily harm (file no. 2004/4-200, decision no. 2004/227), the Grand Chamber of the Court of Cassation held, in its judgment 14 April 2004, that if the plaintiff did not reserve his further rights and bring a “partial action” he could not increase his claim by way of amendment (ıslah). It further stated that any plaintiff who did not reserve his further rights when bringing an action must be considered to have forfeited them and that this forfeiture could not be altered through amendment.

20.  In a case concerning the plaintiff’s request to increase his claim through amendment (file no. 2004/28705, decision no. 2005/9379), the 9th Chamber of the Court of Cassation ruled in its judgment of 22 March 2005 that an amendment would only be possible should the plaintiff make such a request within the statutory time-limit. In this case, having found that the plaintiff’s request for increased compensation was time-barred, the court concluded that the amendment request must be dismissed.

COMPLAINTS

21.  The applicants complained that they had been deprived of their land in violation of Article 1 of Protocol No. 1 to the Convention because the domestic courts had not awarded them sufficient compensation for their expropriated property. They also alleged that they had been denied a fair trial in the determination of their compensation claims since the domestic courts had erred in their application of the domestic law. They alleged, in particular, that the domestic courts had ruled in disregard of the Constitutional Court’s judgment when rejecting their request for amendment of their original claim.

THE LAW

22.  The applicants complained that the domestic courts had not awarded them sufficient compensation for their expropriated property given that they had erred in their application of the domestic law when rejecting their request for amendment of their original claim. They invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

23.  The Government submitted primarily that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, since they had failed to request the Court of Cassation to rectify its judgment pursuant to Article 440 of the Code on Civil Procedure.

24.  They maintained further that the applicants had received a fair hearing in the determination of their civil rights and that there was no arbitrariness or unlawfulness in the domestic court decisions. Although the applicants had been represented by a lawyer in the domestic proceedings, they had failed to reserve their further rights when they had filed their action and had not brought a partial action within the thirty day time-limit stipulated by Article 14 of the Expropriation Act (Law no. 2942). They therefore lost the right to bring a partial action and the right to amend their original claim. Relying on the established case-law of the Court of Cassation in regard to the concept of amendment (ıslah), the Government claimed that the domestic courts had not erred in their application of the domestic law. They finally averred that the domestic courts had awarded the applicants’ claims in full and that, therefore, there had been no deprivation of property without payment within the meaning of Article 1 of Protocol No. 1.

25.  The Court reiterates that it has already examined and rejected the Government’s plea on non-exhaustion in previous cases (see, among others, Gök and Others v. Turkey, nos. 71867/01, 71869/01, 73319/01 and 74858/01, §§ 47-48, 27 July 2006). It finds no particular circumstances in the present application which would require it to depart from that conclusion. Consequently, the Court rejects the Government’s objection.

26.  Turning to the merits of the applicants’ claims, the Court observes that the applicants’ complaints essentially pertain to the fairness of the proceedings within the meaning of Article 6 of the Convention. In this connection, the Court reiterates that, according to its established case-law, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Furthermore, the establishment of the facts and the assessment of the evidence are primarily matters for the domestic courts, the Court’s supervisory jurisdiction being limited to ensuring that the applicants’ Convention rights have not been breached.

27.  In the instant case, the applicants complained that the domestic courts had disregarded the Constitutional Court’s judgment when dismissing their request for amendment (ıslah), and had denied them the possibility of increasing their original claims. The Government denied this claim and argued that the domestic courts were correct in their application of the domestic law.

28.  The Court notes that under Turkish law an “amendment” (ıslah) is a procedural motion which allows plaintiffs to amend and to increase their original claim. This right has emerged following the Constitutional Court’s decision to annul Article 87 of the Code of Civil Procedure, which previously prohibited such a possibility (see paragraph 12 above). However, as it transpires from the Court of Cassation’s established case-law (see paragraphs 18-20 above), this motion is subject to two conditions. Firstly, when filing the action, the plaintiff must state that he or she reserves possible further rights; i.e. the right to amend the claims. Secondly, the plaintiff must file this motion within the statutory time-limit.

29.  This being so, the Court observes that the domestic courts dismissed the applicants’ request for amendment for failure to fulfil either of these two conditions. In other words, the applicants had not brought a “partial action” by reserving their further rights and had not filed their motion within the thirty day time-limit. In these circumstances, it cannot be said that the domestic courts erred in their application of the domestic law. Moreover, throughout the proceedings the applicants were fully able to state their case and there is nothing in the case file which indicates that the taking and the assessment of the evidence was arbitrary or that the proceedings were otherwise unfair so as to raise an issue under Article 6. Consequently, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

30.  As regards the applicants’ complaint pertaining to the alleged taking of their property without the payment of sufficient compensation, the Court notes that the domestic courts awarded the applicants’ claims for increased compensation in full. Given that the applicants’ motion for amendment failed on procedural grounds, the courts were bound by the applicants’ original claim and were not able to make a higher award. Accordingly, having regard to its conclusion in respect of the fairness of the proceedings, the Court considers that the applicants have not been deprived of their property in breach of Article 1 of Protocol No. 1. It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

31.  In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Sally Dollé Françoise Tulkens 
 Registrar President

AKIN AND OTHERS v. TURKEY DECISION


AKIN AND OTHERS v. TURKEY DECISION