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THIRD SECTION
CASE OF İHSAN AND SATUN ÖNEL v. TURKEY
(Application no. 9292/02)
JUDGMENT
STRASBOURG
21 September 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 İhsan and Satun Önel v. Turkey,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. Zupančič,
President,
Mr L. Caflisch,
Mr R. Türmen,
Mr C.
Bîrsan,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr V. Berger,
Section Registrar,
Having deliberated in private on 31 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 9292/02)
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 two Turkish nationals, Mr
İhsan Önel and Mrs Satun Önel, are Turkish
nationals who were born in 1949 and 1948 respectively and live in
Malatya.
- The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On 13 December 2005 the Court decided to communicate
the application to the Government. Under Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The General Directorate of the National Water Board
expropriated two plots of land belonging to the applicants, for the
construction of a dam.
- On 6 October 1998, following the first applicant’s
request for increased compensation for the plot no. 484, the Baskil
Civil Court of General Jurisdiction awarded him 14,241,020,000
Turkish liras (TRL) of additional compensation, plus an interest at
the statutory rate, as of 22 June 1998.
- On 4 March 1999 the Court of Cassation upheld the
decision of the first instance court. On 9 February 2002 and 1 May
2003 TRL 25,281,500 and TRL 901,930 were paid to the
applicant respectively.
- On 14 February 2000 the second applicant filed a
similar request with the Baskil Civil Court of General Jurisdiction,
regarding the plot no. 311.
- On 29 November 2000 the court accepted the applicant’s
request for increased compensation and awarded her TRL 46,396,000,000
of additional compensation, plus an interest at the statutory rate,
as of 14 February 2000. On 14 February 2000 and 5 April 2001, TRL
172,512,450,000 and TRL 3,976,900,000 were paid to the applicant
respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice are outlined in
the Aka v. Turkey judgment
of 23 September 1998 (Reports of Judgments
and Decisions 1998-VI, §§ 17-25), and Akkuş
v. Turkey judgment of 9 July 1997 (Reports
1997-IV, §§ 13-16).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The applicants complained under Article 1 of Protocol
No. 1 that the rate of interest for delays, payable on the additional
compensation for expropriation, was too low and that the
expropriating authority had further delayed in settling the relevant
amounts. Article 1 of Protocol No. 1 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.”
A. Admissibility
- The Government maintained that the applicants had not
exhausted domestic remedies, as required by Article 35 § 1 of
the Convention since they did not request the rectification of the
decisions of the Court of Cassation and did not initiate execution
proceedings to receive the additional compensation awarded by the
domestic courts.
- As regards the first limb of the Government’s
objection the Court notes that in Turkish law, rectification of a
judgment provided under Article 440 of the Code on Civil
procedure is a special remedy against decisions of the Court of
Cassation by which the court can be requested by either party to
review its own judgments even in the absence of new evidence (see
Karaduman v. Turkey, no. 16278/90, Commission decision of
3 May 1993, Decisions and Reports (DR) 74, p. 93). It reiterates
that the applicants are not obliged to make use of remedies which do
not provide redress for their complaints (see, among other
authorities, De Wilde, Ooms and Versyp v. Belgium, judgment of
18 June 1971, Series A no. 12, p. 34, § 62). In the
instant case, the Court notes that the Court of Cassation upheld the
decision of the first instance court concerning the increased
compensation for the expropriation of their lands. It therefore
considers that in the circumstances of the present case, the
rectification of the judgment was not an effective remedy for the
applicants’ complaint.
- As regards the second limb of the Government’s
objection the Court recalls that a person who has obtained an
enforceable judgment against the State as a result of successful
litigation cannot be required to resort to enforcement proceedings in
order to have it executed (see Metaxas v. Greece, no.
8415/02, § 19, 27 May 2004).
- It follows that in the present case the applicants
were not required, under Article 35 of the Convention, to request
rectification of the Court of Cassation’s decision and to
initiate execution proceedings in order to exhaust domestic remedies.
It consequently dismisses the Government’s preliminary
objections.
- Nonetheless the Court finds that the application must
be declared partially inadmissible for the following reason.
- The Court observes that the applicants were the owners
of two separate plots of land. Regarding the plot no. 311, which
belonged to the second applicant, the Court notes that applying the
calculation method adopted in the judgment of Akkuş v. Turkey
case (see Akkuş, cited above, § 35) on the date
of the finalisation of the first instance court’s judgment or
within a reasonable period thereafter, the applicant should have
received TRL 78,873,200,000. On the date of the payment the
amount of full compensation should have been TRL 130,703,000,000. The
applicant received TRL 176,489,350,000, which is more than the full
compensation. In these circumstances, the Court is of the opinion
that the total amount of money paid to the applicant was
satisfactory.
- Consequently, the second applicant cannot be regarded
as have endured a loss due to the interest rates applied and the
deferral of payment. The Court concludes that the complaint lodged by
the second applicant, regarding the plot no. 311 is manifestly
ill-founded and must be declared inadmissible in accordance with
Article 35 §§ 3 and 4 of the Convention.
- In the light of the principles it has established in
its case-law (see, among other authorities, Akkuş and
Aka, cited above) and of all the evidence before it, it finds
that the first applicant’s complaint regarding the plot no. 484
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, § 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 to sustain 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 has 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. Damage
- The first applicant sought compensation for pecuniary
damage in the sum of 41,992 United States dollars, together with the
interest running from 6 October 1998. He also claimed
compensation for non-pecuniary damage, but he left it to the
discretion of the Court.
- The Government contested his claim.
- Using the same method of calculation as in the Akkuş
judgment (cited above, §§ 35-36 and 39) and having regard
to the relevant economic data, the Court awards the first applicant
41,000 euros 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 first
applicant.
B. Costs and expenses
- The first applicant made no claim 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 first applicant’s complaint
concerning his right to property admissible and the remainder of the
application inadmissible;
- 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 first
applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 41,000 (forty-one thousand euros) in respect of
pecuniary damage;
(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 first applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
