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THIRD
SECTION
CASE OF HASAN KAYA v. TURKEY
(Application
no. 33696/02)
JUDGMENT
STRASBOURG
21
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 Hasan Kaya v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr R. Türmen,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I.
Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33696/02) 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 Hasan Kaya, on 15 July
2002.
- The
applicant was represented by Mr M. Özbekli, a lawyer practising
in Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
4 April 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
applicant was born in 1961 and lives in Diyarbakır.
- On
10 August 1999 the Diyarbakır Provincial Private Administration
Office (Diyarbakır Il Özel Idare Müdürlüğü)
expropriated the plots of land belonging to the applicant in
Diyarbakır. A committee of experts assessed the value of these
plots of land and this amount was paid to the applicant when the
expropriation took place.
- On
20 October 1999 the applicant brought an action before Diyarbakır
Civil Court of First Instance, requesting increased compensation.
- On
22 January 2002 the Diyarbakır Civil Court of First
Instance awarded the applicant additional compensation of
118,212,590,355 Turkish liras (TRL) (approximately 97,861 euros
(EUR)) plus interest at the statutory rate applicable at the date of
the court's decision, running from 8 October 1999.
- On
12 March 2002 the Court of Cassation upheld the judgment of the
first-instance court.
- On 15 March 2002 the administration paid the applicant
a total sum of TRL 281,371,870,000 (approximately 237,519 euros
(EUR)).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the Aka v.
Turkey judgment of 23 September 1998 (Reports of Judgments and
Decisions 1998-VI, pp. 2674-76, §§ 17-25).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that he had been paid insufficient interest on
additional compensation received following the expropriation of his
land and that the authorities had delayed in paying him the relevant
amount. He relied on Article 1 of Protocol No. 1, which 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 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 losses allegedly
sustained as a result of the delays in payment of the additional
compensation if he had established that the losses exceeded the
amount of default interest.
- The
Court observes that it dismissed a similar preliminary objection in
the case of Aka v. Turkey (judgment of 23 September 1998,
Reports 1998-VI, pp. 2678-79, §§ 34-37). It sees no
reason to do otherwise in the present case and therefore rejects the
Government's objection.
- It
finds that, in the light of the principles it has established in its
case-law (see, among other authorities, the aforementioned Aka
v. Turkey) and of all the evidence before it, the application
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
Akkus, cited above, p. 1317, § 31; and Aka, cited
above, p. 2682, §§ 50-51).
- 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 for
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.”
- The
applicant sought compensation for pecuniary damage in the sum of
47,285 US dollars (USD).
- The
Government contested this claim.
- The
Court notes that the applicant was awarded TRL 118,212,590,355 in
additional compensation, with a statutory rate of interest. He
received TRL 281,371,870,000 on 15 March 2002. According to the
method of calculation in the Aka judgment (cited above, pp.
2683-84, §§ 55-56) he should have received TRL 328,
594,110,000 if inflation over the relevant periods (20 October 1999
and 15 March 2002) had been taken into account. Thus the applicant
suffered pecuniary damage of TRL 47,444,447,447 at that time. Having
regard to the relevant economic data provided by the State Statistics
Institute, the Court considers that this amount today corresponds to
TRL 82,769,935,500 when updated. On the basis of the average exchange
rates applied by the Turkish Central Bank that amounts tallies with
the sum of EUR 44,192. Accordingly, the Court awards that amount for
pecuniary damage.
B. Costs and expenses
- The
applicant also claimed compensation for costs and expenses but he
left it to the discretion of the Court.
- The
Government contested this claim.
- According
to the Court's case law, an applicant is entitled reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,000 covering costs under all
heads.
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
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 according to
Article 44 § 2 of the Convention, the following
sums plus any tax, stamp duty or imposts that may be chargeable at
the date of payment, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
44,192 (forty four thousand one hundred and ninety two 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 claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
