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FIFTH
SECTION
CASE OF Mehmet Ali GÜNDÜZ v. TURKEY
(Application
no. 27633/02)
JUDGMENT
STRASBOURG
10
August 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 Mehmet Ali Gündüz v. Turkey,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr R. Türmen,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27633/02) 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 Mehmet Ali Gündüz,
(“the applicant”) on 1 April 2002.
2 The
applicant was represented before the Court by Mrs Günay Çelik,
a lawyer practising in İstanbul.
- On
20 June 2005 the Court (Third Section) decided to communicate 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.
- On
10 February 2006 the Government made a friendly settlement proposal,
which the applicant rejected with a letter from his representative,
dated 6 March 2006.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1931 and lives in İzmit.
- On
18 November 1981 the General Directorate of National Water Board
(Devlet Su İşleri Genel Müdürlüğü)
seized and later expropriated three plots of land belonging to the
applicant for the construction of a dam. A committee of experts
assessed the value of the plots and the relevant amount was deposited
with a bank in the name of the applicant on 23 June 1982.
However, the expropriation order and the document containing the
information about the compensation were not served on the applicant.
- On
1 May 1998 the applicant filed an action with the Akyaka Civil Court
requesting compensation for seizure without an official expropriation
(kamulaştırmasız el koyma). The court
established that although the applicant was not notified, a de
facto expropriation had taken place.
- After
conducting two on-site visits and taking two separate sets of expert
reports into consideration, the court established what the
then-current value of land would have been had the expropriation not
taken place. On 14 October 1999 it awarded the applicant a
corresponding in additional compensation plus interest at the
statutory rate running from 1 May 1998, the
date of the applicant’s filing of that case. As the
compensation amount was based on the then-current value of the land,
and not on its 1981 value, the court rejected the applicant’s
request to run the interest from the date of the seizure.
- On
10 October 2000 the Court of Cassation upheld the judgment. On
8 February 2001 the same court rejected a request for
rectification.
- On
24 October 2001 the due amount was paid to the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the case of
Akkuş v. Turkey (judgment of 9 July 1997, Reports of
Judgments and Decisions 1997 IV, §§ 13-16).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the additional compensation for
expropriation, which he had obtained from the authorities only by
October 2001, had fallen in value, since the default interest payable
had not kept pace with the high rate of inflation in Turkey.
He further complained under the same heading that the interest at the
statutory rate had started to run from 1 May 1998 despite the fact
that he had been deprived of his property rights on 18 November 1981.
He
relied on Article 1 of Protocol No. 1, which reads insofar as
relevant 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.”
A. Admissibility
- The Government asked the Court to dismiss these
complaints as inadmissible for failure to comply with the six-month
time-limit under Article 35 § 1 of the Convention. The
Government noted that the applicant lodged his application not within
six months from the final domestic ruling but from its enforcement.
- On numerous occasions, the Court has dismissed the
same preliminary objection in earlier cases that followed the Akkuş
jurisprudence cited above. It finds no reason in the present case
that would warrant a departure from its well-established
admissibility case law.
- The Court observes that the applicant’s
complaint under Article 1 of Protocol No. 1 is twofold. First, he
complains that the default interest had run from the filing of his
case with the first instance court, and not from the de facto
expropriation. He argued that the assessment should have taken into
account the rate of inflation in Turkey from the expropriation in
1981 until the payment in 2001.
- The Court notes that the applicant could have
reasonably expected the statutory interest to run from the
expropriation in 1981 if the much-lower value in 1981 had been taken
as the basis on which to accrue interest. It is clear however that
the assessment took into account the then-current value of the land –
supposing that the expropriation had not taken place.
- It follows that this limb of the complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
- The second limb of the complaint concerns solely the
authorities’ delay in paying the additional compensation and
the damage sustained by the applicant as a result. The Court finds
that, in the light of the principles it has established in its
case-law (see, among other authorities, Akkuş, cited
above) and of all the evidence before it, this complaint requires
examination on the merits and there are no grounds for declaring it
inadmissible.
B. Merits
- The Court has found a violation of Article 1 of
Protocol No. 1 in a number of cases that raise similar issues to
those arising here (see Akkuş, cited above, p. 1317, §
31).
- Having
examined the facts and arguments presented by the Government, the
Court considers that there is nothing to warrant a departure from its
findings in the previous cases. It finds that the delay in paying the
additional compensation awarded by the domestic courts was
attributable to the expropriating authority and caused the owner a
loss additional to that of the expropriated land. As a result of that
delay and the length of the proceedings as a whole, the Court finds
that the applicant have had to bear an individual and excessive
burden that has upset the fair balance that must be maintained
between the demands of the general interest and protection of the
right to the peaceful enjoyment of possessions.
- Consequently,
there has been a violation of Article 1 of Protocol No. 1.
II. 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. Pecuniary and non-pecuniary damage
- The
applicant sought compensation for pecuniary damage in the sum of
136,000 euros (EUR). He also claimed compensation for non-pecuniary
damage of EUR 10,000.
- The
Government contested his claims.
- Using
the same method of calculation as in the Akkuş judgment
(cited above, p. 1311, §§ 35-36 and 39) and having
regard to the relevant economic data, the Court awards the applicant
EUR 13,671 for pecuniary damage.
- The
Court considers that the finding of a violation of Article 1 of
Protocol No. 1 constitutes in itself sufficient just satisfaction for
any non pecuniary damage suffered by the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 6,000 for the costs and expenses.
- The
Government contested this claim.
- Making
its own estimate based on the information available, the
Court considers it reasonable to award the applicant the sum of EUR
1,000 under this head.
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 under Article 1 of
Protocol No. 1 inadmissible insofar as it relates to the accrual of
statutory interest from the filing of the domestic application;
- Declares the complaint under Article 1 of
Protocol No. 1 admissible insofar as it relates to the authorities’
delay in paying additional compensation;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant within three months from
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into New Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
13,671 (thirteen thousand six hundred and seventy-one euros) in
respect of pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs
and expenses;
(iii) any taxes that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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
claims for just satisfaction.
Done in English, and notified in writing on 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
