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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Fatma Ozkan and others v Turkey - 5583/06 [2009] ECHR 2005 (10 November 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/2005.html Cite as: [2009] ECHR 2005 |
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SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos.
5583/06, 12318/06 and 13236/06
by Fatma Özkan and
others
against Turkey
The European Court of Human Rights (Second Section), sitting on 10 November 2009 as a Chamber composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
Kristina
Pardalos,
judges,
and Sally
Dollé, Section
Registrar,
Having regard to the above applications lodged on 6 February 2006 and 8 March 2006,
Having deliberated, decides as follows:
THE FACTS
The applicants are all Turkish nationals who lived in Trabzon. They are represented before the Court by Mr H. C. Yalçın, a lawyer practising in Trabzon.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 31 October 2000 the Ministry of Industry and Trade (“the Ministry”) expropriated the applicants’ plots of land located in the Yaylacık and Esentepe villages of Vakfıkebir, Trabzon. The applicants subsequently brought cases before the Vakfıkebir Civil Court for additional expropriation compensation. Following the finalisation of these judgments, the applicants initiated execution proceedings before the Trabzon Execution Office to obtain the extra compensation which had been awarded to them.
On 20 September 2006 the Ministry made partial payments to the Trabzon Execution Office in respect of the applicants’ additional expropriation compensation.
The details regarding the civil proceedings and the subsequent payments appear in the table below:
|
APP. NO. |
APPLICANT’S NAME and DATE OF BIRTH
|
DATE OF FIRST-INSTANCE COURT DECISION and AMOUNT OF COMPENSATION AWARDED (in Turkish liras (TRL)) |
DATE FROM WHICH THE STATUTORY RATE OF INTEREST BEGAN TO RUN |
DATE OF COURT OF CASSATION DECISION |
AMOUNT OF PAYMENT (In Turkish liras (TRY1)) and FILE NO. BEFORE THE EXECUTION OFFICE |
|
5583/06 |
Fatma Özkan (1931)
|
21.09.2001 (2001/70-120)
2,774,102,250 |
18.01.2001 |
18.03.2002 (E: 1146) |
671.36
(Trabzon 2nd Execution Office, no. 2006/2491) |
|
12318/06 |
Mustafa Kaya (1935) |
26.06.2001 (2001/71-82)
40,692,316,500 |
11.01.2001 |
4.03.2002 (E: 601) |
13,973.84
(Trabzon 2nd Execution Office, no. 2006/2497) |
|
12318/06 |
Ömer Kaya (1939) |
21.09.2001 (2001/77-122)
101,487,832,250 |
11.01.2001 |
4.03.2002 (E: 602) |
22,666.32
(Trabzon 2nd Execution Office, no. 2006/2493) |
|
12318/06 |
Yıldız Kaya (1954) |
21.09.2001 (2001/73-121)
33,804,768,750 (applicant’s share was only 1/24 of the total amount) |
16.01.2001 |
11.03.2002 (E: 807) |
7,124.29
(applicant was only entitled to 1/24 of this amount)
(Trabzon 2nd Execution Office, no. 2006/2496) |
|
12318/06 |
Mehmet Kaya (1918)
|
26.06.2001 (2001/74-80)
34,182,093,000 |
14.01.2001 |
25.03.2002 (E: 1596) |
7,423.92
(Trabzon 2nd Execution Office, no. 2006/2498) |
|
12318/06 |
Kemal Kadıoğlu (1924) |
26.06.2001 (2001/75-79)
13,400,615,250 |
18.01.2001 |
15.04.2002 (E: 4963) |
4,601.94
(Trabzon 3rd Execution Office, no. 2006/2342) |
|
12318/06 |
Faik Kaya (1927) |
7.06.2002 (2002/75-82)
116,566,732,000 |
4.01.2001 |
No appeal (first-instance court’s decision became final on 9.09.2002) |
25,541.03
(Trabzon 3rd Execution Office, no. 2006/2343) |
|
12318/06 |
Turan Kaya (1952) |
23.10.2001 (2001/69-178)
29,045,130,150 (applicant’s share was only 1/6 of the total amount) |
25.01.2001 |
18.03.2002 (E: 1145) |
5,024.66
(applicant was only entitled to 1/6 of this amount)
(Trabzon 2nd Execution Office, no. 2006/2494) |
|
12318/06 |
Osman Kaya (1937) |
16.07.2002 (2002/103-116)
37,006,065,750 |
11.01.2001 |
No appeal (first-instance court’s decision became final on 13.09.2002) |
8,362.40
(Trabzon 3rd Execution Office, no. 2006/2344) |
|
12318/06 |
Emine Yıldız
(1947) |
21.09.2001 (2001/68-123)
113,530,734,000 (applicant’s share was only 1/4 of the total amount) |
18.01.2001 |
18.03.2002 (E: 1297) |
20,736.03 (applicant was only entitled to 1/4 of this amount)
(Trabzon 2nd Execution Office, no. 2006/2495)
|
|
13236/06 |
Fikriye Kaya (1945) |
26.06.2001 (2001/78-83)
3,131,457,500 (applicant’s share was only 1/4 of the total amount) |
18.01.2001 |
18.03.2002 (E: 1144) |
1,033.69 (applicant was only entitled to 1/4 of this amount)
(Trabzon 2nd Execution Office, no. 2006/2492) |
According to the latest information in the case file, the judgments of the Vakfıkebir Civil Court remain partially unenforced.
COMPLAINT
Relying on Article 1 of Protocol No. 1, the applicants complained that the Vakfıkebir Civil Court judgments had not been fully executed since 2001 and 2002.
THE LAW
The Court considers that this complaint should be examined from the standpoint of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention.
(i) As regards the applicants Osman Kaya and Mehmet Kaya (application no. 12318/06)
The Court notes that two of the applicants, namely Osman Kaya and Mehmet Kaya, died on 28 December 2003 and 1 June 2005 respectively, after the finalisation of the domestic proceedings but before the present applications were lodged with the Court. In this connection, the Court points out that an application of the present kind cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Macedonia Gavrielidou and Others v. Cyprus (dec.), no. 73802/01, 13 November 2003). Therefore, Osman Kaya and Mehmet Kaya cannot claim to have been victims of a violation of their rights under the Convention and Protocol No. 1.
It follows that application no. 12318/06, insofar as it relates to the complaints made on behalf of Osman Kaya and Mehmet Kaya, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(ii) As regards the remaining applicants (Fatma Özkan, Mustafa Kaya, Ömer Kaya, Yıldız Kaya, Kemal Kadıoğlu, Faik Kaya, Turan Kaya, Emine Yıldız and Fikriye Kaya)
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applications to the respondent Government.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the complaint concerning the failure of the domestic authorities to execute the domestic court judgments in full in respect of the applicants Fatma Özkan, Mustafa Kaya, Ömer Kaya, Yıldız Kaya, Kemal Kadıoğlu, Faik Kaya, Turan Kaya, Emine Yıldız and Fikriye Kaya;
Declares the remainder of application no. 12318/06 inadmissible in respect of Osman Kaya and Mehmet Kaya.
Sally Dollé Françoise Tulkens
Registrar President
1 On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1= TRL 1,000,000.