BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF M. KAPLAN v. TURKEY
(Application
no. 29016/04)
JUDGMENT
STRASBOURG
9 December 2008
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 M. Kaplan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29016/04) 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 Kaplan (“the
applicant”), on 25 March 2003.
- The
applicant was represented by Mr M. Birlik, a lawyer practising in
Şanlıurfa. The Turkish Government (“the Government”)
were represented by their Agent.
- On
5 November 2007 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Gaziantep.
- The
Ministry of Energy and Natural Resources expropriated a plot of land
belonging to the applicant (plot no. 624) in the Aşağıçardak
village, in Nizip, in order to build the Birecik dam.
- On
8 February 1999 the applicant brought an action before the Nizip
Civil Court of First Instance for additional compensation.
- On
30 December 1999 the Nizip Civil Court of First Instance awarded the
applicant additional compensation of 5,286,375,000 Turkish liras
(TRL)
plus interest at the statutory rate, running from 5 March 1999.
- On
19 June 2000 the Court of Cassation upheld the judgment of the
first-instance court.
- On
4 November 2002 and 23 May 2007 the administration paid the applicant
TRL 15,853,159,343
and 7,799.64 new Turkish liras (TRY)
respectively in additional compensation, together with interest.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice are set out in
Kaçar and Others v. Turkey
(nos. 38323/04, 38379/04, 38389/04, 38403/04, 38423/04, 38510/04,
38513/04, and 38522/04, 22 July 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the delay in the payment of the additional
compensation he was awarded following the expropriation of his
property, coupled with the low interest rates, had caused him to
suffer a financial loss. He relied on Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which read insofar as
relevant as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a... hearing within a
reasonable time ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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 submitted that the applicant had not exhausted domestic
remedies as required by Article 35 of the Convention, as he had
failed to make proper use of the remedy available to him under
Article 105 of the Code of Obligations. Under that provision, he
would have been eligible for compensation for the loss allegedly
sustained as a result of the delay in payment of the additional
compensation if he had established that the loss exceeded the amount
of default interest.
- The
Government added that the applicant had failed to respect the
six-month rule, having lodged his application on 25 March 2003
whereas the Court of Cassation had delivered its judgment on 19 June
2000.
- The
Court observes that it dismissed similar preliminary objections in
the case of Akkuş v Turkey
(9 July 1997, §§ 20-23, Reports of Judgments and
Decisions 1997 IV). It sees no reason
to do otherwise in the present case and therefore rejects the
Government's objections.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the additional compensation had been fully
paid on 4 November 2002 and 22 May 2007 whereas the applicant had
omitted to mention the second payment in his complaints. In addition
the applicant had not suffered any material loss as a result of the
interest rates applied and the authorities' delay in settling the
relevant amount. Taking into account the Court's above-mentioned
Akkuş judgment, the State had fulfilled its obligation to
respect the applicant's right to the protection of his property under
Article 1 of Protocol No. 1. Nor had there been any violation of
Article 6 of the Convention or of Article 1 of Protocol No. 1.
- The
applicant did not comment on the payment made on 22 May 2007. He
maintained his allegations and contested the Government's arguments.
- The Court notes that it has
already examined similar cases on previous occasions and has found
violations of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 (see, for instance, Burdov
v. Russia, no. 59498/00, §§
34 42, ECHR 2002 III; Kaçar
and Others, cited above, §§
22 25). The Court considers that there is nothing to
warrant a departure from its findings in the previous cases. It
notes that the authorities effected the first payment two years and
five months after the Court of Cassation's decision and that the
second payment was made almost seven years after the said decision.
Consequently, the Court 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.
- In
the light of the foregoing, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention and 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 applicant claimed EUR 26,000
in respect of pecuniary damage and EUR 20,000 for non-pecuniary
damage.
- The Government contested these
claims.
- In respect of the applicant's
complaint under Article 1 of Protocol No. 1, the Court estimates
– 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 at the
material time – that the applicant's loss after the two
payments is EUR 400. The Court considers in the light of its case law
that the payment by the Government of the outstanding judgment debt
would satisfy the applicant's claim for pecuniary damage (see, among
other authorities, Basoukou v.
Greece, no. 3028/03, § 26, 21
April 2005; Ahmet Kılıç
v. Turkey, no. 38473/02, § 39,
25 July 2006; Akıncı
v. Turkey, no. 12146/02, §
21, 8 April 2008; Kaçar and
Others, cited above, § 30).
- The Court accepts that the
applicant must have suffered some non-pecuniary damage which cannot
be sufficiently compensated by the finding of a violation alone.
Consequently, taking into account the circumstances of the case and
making its assessment on an equitable basis, the Court awards the
applicant EUR 3,000.
B. Costs and expenses
- The
applicant did not claim any costs and expenses. Accordingly, no award
is made 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 application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 in respect of the
late enforcement of the domestic judgment;
- 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 sums, to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
400 (four hundred euros), plus any tax that may be chargeable, in
respect of pecuniary damage,
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
