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SECOND
SECTION
CASE OF ÜÇPINAR v. TURKEY
(Application
no. 41479/05)
JUDGMENT
STRASBOURG
21 July
2009
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 Üçpınar
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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 30 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41479/05) 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 İsmet Üçpınar
(“the applicant”), on 10 November 2005.
- The
applicant was represented by Ms H. Müslümoğlu and Mr
K. Yaz, lawyers practising in Konya. The Turkish Government (“the
Government”) were represented by their Agent.
- On
1 July 2008 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaint concerning
the damage allegedly sustained by the applicant as a result of the
various insufficient interest rates compared to the high inflation
rate. It also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Aksaray.
- In
1995 the Municipality of Konya decided to expropriate the applicant’s
property. The title was transferred to the Municipality of Konya on
26 August 1996.
- On
1 May 2003 the applicant brought an action before the Konya Court of
First Instance for increased compensation. On 21 June 2004 the Konya
Court of First Instance partly accepted the applicant’s claim
and awarded him additional compensation of 1,861,980,000
Turkish liras (TRL), which bore statutory interest running from 26
August 1996. On 29 December 2004 the Court of Cassation upheld
the judgment.
- The
applicant requested rectification. On 18 April 2005 the Court of
Cassation dismissed the request for rectification and notified the
applicant on 10 May 2005.
- On
22 June 2005 the authorities paid the applicant 13,783 Turkish liras
(TRY).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The applicant complained that the
various rates of default interest applied to the additional
compensation awarded for the expropriation of his property had not
been sufficient in view of the rate of inflation.
- The
Government contested this argument and maintained that the applicant
had not raised this issue before the domestic authorities.
- The Court notes that the legal interest rates applied
to State debts are prescribed by law. Thus, it is obvious that even
if the applicant had raised his complaint concerning the legal
interest rates before the domestic authorities he would not have been
compensated (see Reçber v. Turkey, no. 52895/99, §
18, 2 February 2006).
- The
Court notes that this complaint 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.
- As
regards the merits of the case, 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 Aka v. Turkey, 23
September 1998, §§ 50 51, Reports of Judgments
and Decisions 1998 VI). Having examined the facts and
arguments presented by the Government, the Court considers that there
is nothing to warrant a departure from this conclusion reached in the
previous cases. It finds that the difference between the values of
the amounts due to the applicant when his property was expropriated
and when they were actually paid caused him to sustain a loss which
upset the fair balance that should have been maintained between the
protection of the right to property and the demands of the general
interest.
- Consequently,
there has been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed TRY 133,000
in respect of pecuniary damage. The Government contested this claim
and asserted that it was excessive and speculative.
- Using
the same method of calculation as in the Aka judgment (cited above,
§§ 53-57) and having regard to the relevant economic data,
the Court awards the applicant EUR 21,700 in respect of pecuniary
damage.
- The
applicant did not submit a claim for non-pecuniary damage or costs
and expenses. Accordingly, the Court concludes that there is no call
to award him any sum on these accounts.
- 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 admissible;
- Holds that there has been a violation of Article
1 of protocol No.1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 21,700 (twenty-one
thousand seven hundred euros), plus any tax that may be chargeable,
in respect of pecuniary damage, to be converted into Turkish liras at
the rate applicable at the date of settlement;
(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 21 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
