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SECOND
SECTION
CASE OF DİLDAR v. TURKEY
(Application
no. 77361/01)
JUDGMENT
STRASBOURG
12
December 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Dildar v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 21 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 77361/01) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr. Mustafa Nazif Dildar
(“the applicant”), on 20 July 2001.
- The
applicant was represented by Mr E. Doğan, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court
- The
applicant complained, in particular, about the excessive length of
the civil proceedings, the non-enforcement of the court decision, as
well as the authorities’ subsequent delay in paying the
additional compensation awarded by the domestic courts.
- On
14 February 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Istanbul.
- On
25 June 1987 the Istanbul Municipality decided to expropriate two
houses that belonged to the applicant and located in Beyoğlu,
Istanbul. The applicant filed an action before the Istanbul
Administrative Court to annul the decision of the Municipality. On 22
December 1993 the Administrative Court dismissed his request. A
committee of experts assessed the value of the property at 11.590.000
Turkish Liras (TRL), and this amount was consequently paid to the
applicant when the expropriation took place.
- On
18 January 1994 the applicant filed an action before the Beyoğlu
Civil Court of General Jurisdiction for increased compensation.
- On
28 May 1998 there was a hearing attended by neither the applicant nor
his lawyer. Subsequently, the court decided to close the case until
the applicant renewed his petition. On 5 June 1998, following the new
petition filed by the applicant’s lawyer, the case was resumed.
- Twenty
three hearings were held before the Beyoğlu Civil Court of
General Jurisdiction, during six of which neither the applicant nor
his lawyer were present.
- On
16 July 1998 the court awarded the applicant TRL 615.478.000
of additional compensation, plus interest at the statutory rate, as
of 22 December 1993.
- Following
the applicant’s appeal, on 19 December 2000 the Court of
Cassation upheld the decision of the Beyoğlu court. This
decision was notified to the applicant on 26 January 2001.
- The
applicant requested the Court of Cassation to rectify its decision.
On 23 March 2001 the Court of Cassation dismissed the applicant’s
request.
- In
his observations dated 30 June 2006, the applicant informed the
Registry that he had not yet been paid the award determined by the
first-instance court on 16 July 1998.
THE LAW
- The
applicant complained under Article 6 § 1 of the Convention about
the lack of a fair hearing, the length of the proceedings and the
non-enforcement of the court decision given in his favour. Moreover,
he complained under Article 1 of Protocol No. 1 to the Convention
about the insufficient interest due on the additional compensation
awarded following the expropriation of his property, and about
authorities’ failure to pay this sum.
I. ADMISSIBILITY
A. The Government’s preliminary objections
1. Non-exhaustion of domestic remedies
- The
Government submitted that the application should be rejected for
failure to exhaust domestic remedies, pursuant to Article 35 § 1
of the Convention, as the applicant did not request the rectification
of the Court of Cassation’s decision. Moreover, they argued
that, after obtaining a court decision in his favour, the applicant
could have initiated proceedings before the Istanbul Execution Office
to compel the Municipality to pay or he could have applied to the
Municipality directly and claimed his money. Additionally, the
Government contended that the applicant had the opportunity to
initiate criminal proceedings against the State officials who were
allegedly responsible in delaying the payment.
Regarding the applicant’s complaint under Article 1 of Protocol
No. 1, the Government maintained that the applicant had failed to
make proper use of the remedy available to
him under Article 105 of the Code of Obligations.
- The
Court observes that the applicant did request the Court of Cassation
to rectify its decision, but that request was dismissed on 23 March
2001. Moreover, it notes that the applicant cannot be expected to
submit a further request to the Municipality for the enforcement of
the court decision in his favour.
- As to the Government’s submission regarding the
applicant’s failure to apply to the Execution Office for
enforcement of the judgment, the Court notes that it has already
examined a similar objection in the case of Kanioğlu and
Others v. Turkey ((dec.) nos. 44766/98, 44771/98 and
44772/98, 13 May 2004) and dismissed it on the ground that this
remedy was not capable of offering creditors any prospects of
success.
- As
regards the Government’s objection concerning the complaint
under Article 1 of Protocol No. 1, the Court observes that it
dismissed a similar preliminary objection in the case of Aka v.
Turkey (23 September 1998, Reports of Judgments and Decisions
1998 VI, §§ 34-37). It sees no reason to do otherwise
in the present case.
- The
Court therefore dismisses the Government’s preliminary
objections regarding domestic remedies.
2. The six-month’s rule
- The
Government further alleged that the application should be dismissed
for failure to comply with the six month’s rule, since he did
not lodge his application within six months of the last domestic
court decision on 19 December 2000.
- The
Court reiterates that the present case concerns civil proceedings,
and that the procedure to rectify judgments in Turkey constitutes an
effective domestic remedy within the meaning of generally recognised
international law principles (see, Molin Inşaat v. Turkey,
no. 23762/94, Commission decision of 7 September 1995). Thus, the
date of the Court of Cassation’s decision upon appeal cannot be
taken as the starting point for the determination of the six-month
time-limit (see, Latif Fuat Öztürk v. Turkey, no.
54673/00, § 28, 2 February 2006). The Court observes that,
in the instant case, the six month period started running from 23
March 2001, the date on which the Court of Cassation dismissed the
applicant’s request for rectification of the decision. By
lodging his application on 20 July 2001, the applicant complied with
the requirement set out in Article 35 § 1 of the Convention. The
objection of the Government must therefore be dismissed.
B. Other grounds of admissibility
- The
applicant alleged that he did not have a fair hearing, within the
meaning of Article 6 § 1 of the Convention, as the Beyoğlu
Civil Court’s decision, fixing the date on which the statutory
interest rate started to run, was arbitrary.
- The Court notes that it is not its task to act as a
court of appeal or, as is sometimes said, as a court of fourth
instance, from the decisions of domestic courts. According to the
case-law, the latter are best placed to assess the credibility of
witnesses and the relevance of evidence to the issues in the case
(see, amongst many authorities, Vidal v. Belgium,
judgment of 22 April 1992, Series A no. 235 B, pp. 32-33, § 32;
Edwards v. the United Kingdom, judgment of 16 December 1992,
Series A no. 247 B, § 34). In the light of
the foregoing, the Court finds that this complaint should be rejected
as being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
- The
Court notes that, otherwise, the applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
25. The
applicant alleged two violations of Article 6 § 1 of the
Convention, which provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
1. Non-enforcement of court decisions
- The
applicant complained that the Municipality did not comply with
the domestic court’s judgments given in his favour.
- The
Government did not submit any observations regarding the merits of
this complaint.
- The
Court reiterates its case-law to the effect that the right of access
to a tribunal guaranteed by Article 6 § 1 of the Convention
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. The
execution of a judgment given by any court must therefore be regarded
as an integral part of the “trial” for the purposes of
Article 6 (see, inter alia, Hornsby v. Greece, judgment
of 19 March 1997, Reports 1997-II, pp. 510-11, § 40 et
seq.).
- In the present case, the Court observes that on 16
July 1998 the Beyoğlu Civil Court of General Jurisdiction
ordered the Municipality to pay the applicant additional
compensation, plus interest for the expropriation of his property.
Following the appeal proceedings, this decision became final on 23
March 2001. The judgment has not yet been enforced. The Court
considers that this failure engages the responsibility of the State
under Article 6 § 1 of the Convention (Scollo v. Italy,
judgment of 28 September 1995, Series A no. 315 C, § 44;
Tunç v. Turkey, no. 54040/00, § 26, 24 May
2005)
- The
Court finds that by failing for such a substantial period of time to
take the necessary measures to comply with the final judicial
decisions in the present case, the authorities deprived the
provisions of Article 6 § 1 of much of their useful effect.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
2. Length of the proceedings
- The
Government contended that the case was complex. They maintained that
four different expert opinions were requested by the court. Moreover,
they argued that the applicant had contributed to the length of the
proceedings by not attending a number of hearings.
- The
Court reiterates that the reasonableness of the length of proceedings
is to be assessed in the light of the circumstances of the case and
having regard to the criteria laid down in the Court’s
case-law, in particular the complexity of the case and the conduct of
the applicant and of the relevant authorities (see, among other
authorities, Richard v. France, judgment of 22 April 1998,
Reports 1998 II, § 57).
- In
the present case, the Court notes that the period to be taken into
consideration began on 18 January 1994 when the applicant initiated
proceedings before the Beyoğlu Civil Court of General
Jurisdiction. It ended on 23 March 2001 when the Court of Cassation
dismissed the applicant’s request for the rectification of its
decision. The proceedings therefore lasted over seven years and two
months, for two levels of jurisdiction, one of which dealt with the
case twice.
- The
Court observes that the case was not particularly complex.
Furthermore, it considers that the length of the proceedings cannot
be imputed to the applicant merely because he was absent at a few
hearings.
- As
to the conduct of the authorities, the Court notes that the domestic
courts delivered three decisions during a period of seven years and
two months. Moreover, the Municipality has still not paid the
applicant the sum which he was awarded and the relevant interest.
- Accordingly,
the Court finds that the proceedings have not been concluded within a
“reasonable time”. Consequently, there has been a
violation of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1, on the one
hand, about the insufficient interest on the additional compensation
received following the expropriation of his property and, on the
other hand, about the authorities’ failure to pay this amount.
Article 1 of Protocol No. 1 reads:
“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.”
- The
Government contested the applicant’s arguments. They alleged
that the applicant had been awarded sufficient compensation for the
expropriation of his property.
- The
Court observes that the applicant, whose property has been
expropriated, has been awarded additional compensation by a decision
of the Beyoglu Civil Court. Although this decision became final on
23 March 2001, no payment has yet been made.
- The
Court notes that it has examined similar cases in the past and has
concluded that there was a violation of Article 1 of Protocol No. 1
to the Convention (see, Tunç v. Turkey, no. 54040/00,
§ 39, 24 May 2005; Kuzu v. Turkey, no. 13062/03,
§ 20, 17 January 2006; Bourdov v. Russia,
no. 59498/00, § 42, ECHR 2002-III). The Court sees no
reason to reach a different conclusion in the present case.
- In
view of the above, the Court finds that there is no need to examine
separately the complaint concerning the insufficient interest on the
additional compensation.
- It
concludes that, in the instant case, there has been a violation of
Article 1 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Relying
on the purported actual value of his expropriated property, the
applicant claimed 1,000,000 US dollars (USD) in respect of
non-pecuniary damage. He also claimed compensation for non-pecuniary
damage in the amount of USD 100,000.
- The
Government argued that the applicant’s claim for pecuniary
damage was exaggerated and unsubstantiated. Moreover, they submitted
that, if the Court were to find a violation of the Convention in the
present case, this would in itself constitute sufficient compensation
for any non-pecuniary damage allegedly suffered by the applicant.
- The Court notes that the pecuniary damage sustained by
the applicant related to the non-payment of the additional
compensation which the applicant should have received when the
domestic courts rendered their final decision. Using the same method
of calculation as in the Aka judgment (cited above, pp.
2683-84, §§ 55-56) and having regard to the relevant
economic data, the Court awards the applicant EUR 59,000 for
pecuniary damage. This award should be in final settlement of the
applicant’s outstanding domestic claim considered in the
present case.
- As
to non-pecuniary damage, the Court considers that the applicant’s
prejudice cannot be sufficiently compensated by the finding of the
various violations alone. Taking into account the circumstances of
the case and having regard to its case-law, the Court awards the
applicant EUR 2,000 under that head.
B. Costs and expenses
- As to his legal fees, the applicant claimed that his
lawyer had worked 60 hours on the case. Basing himself on the minimum
scales of the Istanbul Bar, he assessed his fees at USD 12,600. He
further claimed USD 500 for the costs and expenses incurred during
the proceedings before the Court.
- The
Government contended that the applicant’s claim was wholly
unsubstantiated.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant EUR 1,000 in respect
of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings, the non-enforcement of the judgment, the
insufficient interest on the additional compensation awarded,
following the expropriation of his property, and the authorities’
failure to pay this amount, admissible, and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention, in respect of the non-enforcement of
the judgment;
- Holds that there has been a violation of Article
6 § 1 of the Convention, in respect of the length of the
proceedings;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, the following
sums, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
59,000 (fifty nine thousand euros) for pecuniary damage;
(ii) EUR
2,000 (two thousand euros) for non-pecuniary damage;
(iii) EUR
1,000 (one thousand euros) for costs and expense;
(iv) plus
any taxes that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
