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FIFTH
SECTION
CASE OF ACUN AND YUMAK v. TURKEY
(Application
no. 67112/01)
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 Acun and Yumak v. Turkey,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr R.
Türmen,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
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. 67112/01) 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, Ms Dudu Acun and
Mr Ahmet Yumak (“the applicants”) on 26 January
2001.
- The
applicants were represented by Mr Ahmet Elvan Tetik, a lawyer
practising in Antalya. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
5 April 2004 the Court decided to communicate the application to the
Government. In a letter of 8 April 2004, the Court informed the
parties that in accordance with Article 29 §§ 1 and 3 of
the Convention it would decide on both the admissibility and merits
of the application.
- 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
applicants were born in 1944 and 1951 respectively and live in
Antalya.
- On
10 December 1997 the General Directorate of National Airports
expropriated a plot of land belonging to the applicants. A committee
of experts assessed the value of the plot of land and the relevant
amount was paid to the applicants when the expropriation took place.
- On
30 December 1997 the applicants filed an action with the Antalya
Civil Court of First-instance requesting additional compensation. On
20 April 1998 the First-instance court awarded them additional
compensation plus interest at the statutory rate.
- On
21 February 2000 the Court of Cassation quashed the judgment of the
Antalya Civil Court of First-instance, finding that the amount
awarded was too high.
- On
22 December 2000 the Antalya Civil Court awarded the applicants
additional compensation of 8,185,550,750 Turkish Liras (TRL)
(approximately 5,100 euros (EUR)) plus interest at the statutory rate
applicable at the date of the court’s decision, running from 19
December 1997, the date on which the title deed to the land had been
transferred. The judgment of the court became final on 18 January
2001.
- On
12 January 2001 the authorities paid the applicants the sum of TRL
21,896,872,000 (approximately EUR 13,700), including interest.
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
applicants complained that the additional compensation for
expropriation, which they had obtained from the authorities only
after three years of court proceedings, had fallen in value, since
the default interest payable had not kept pace with the very high
rate of inflation in Turkey. They 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, firstly, to dismiss the application since
the applicants had failed to fulfil the requirement of having a
victim status. They alleged that since the additional compensation
had been paid twenty-one days after the judgment became final, the
applicants had not suffered any delay. They further asserted that the
applicants had failed to exhaust the domestic remedies available to
them since they had not appealed to the Court of Cassation for the
allegedly low amount of additional compensation.
- The
Court notes that the applicants’ complaint concerns the time
elapsed between the expropriation of the plot of land and the payment
of the additional compensation. It observes that, subsequent to their
request, the domestic courts awarded the applicants an additional
compensation, which could have been considered satisfactory only if
it had been paid within a reasonable time following the expropriation
of the plot of land. Having regard to the fact that the applicants
lodged an action with the domestic courts on 30 December 1997, it
appears that the additional compensation was paid to the applicants
more than three years after they requested compensation.
-
As to the applicants’ failure to appeal against the judgment of
22 December 2000, the Court is of the opinion that it cannot be
expected from the applicants to appeal against a judgment in their
favour. Furthermore, the Court observes that the applicants do not
complain about the amount of additional compensation. They rather
complain of the loss that they had sustained as a result of the delay
in payment of the additional compensation.
- In
light these considerations, the Court dismisses the Government’s
objections as to the applicants’ victim status.
- Lastly,
the Government maintained that the applicants had not exhausted
domestic remedies as required by Article 35 of the Convention, as
they had failed to make proper use of the remedy available to them
under Article 105 of the Code of Obligations. Under that provision,
they would have been eligible for compensation for the losses
allegedly sustained as a result of the delays in payment of the
additional compensation if they had established that the losses
exceeded the amount of default interest.
- The
Court observes that it dismissed a similar objection in the case of
Aka v. Turkey (judgment of 23 September 1998, Reports
1997-VI, pp. 2678-79, §§ 34-37). It sees no reason to
do otherwise in the present case and therefore rejects the
Government’s objection.
- Thus,
in light of the principles it has established in its case-law (see,
among other authorities, Aka v. Turkey, cited above) and of
all the evidence before it, the Court considers that 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
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 owners 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 applicants 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
applicants sought compensation for pecuniary damage in the sum of
5,292 United States dollars (USD). They also claimed compensation for
non-pecuniary damage in the amount of USD 10,000.
- The
Government contested their claims.
- Using
the same method of calculation as in the Aka judgment (cited
above, §§ 55-56) and having regard to the relevant economic
data, the Court awards the applicants the amount claimed in full for
pecuniary damage, i.e. EUR 4,400.
- The
Court considers that the finding of a violation of Article 1 of
Protocol No.1 constitutes in itself sufficient compensation for any
non pecuniary
damage suffered by the applicants.
B. Costs and expenses
- The
applicants also claimed USD 900 for the costs and expenses incurred
before the Court.
- The
Government contested those claims.
- Making
its own estimate based on the information available, the
Court considers it reasonable to award the applicants the sum of EUR
500 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
1 of Protocol No. 1;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for non-pecuniary
damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants jointly, 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
4,400 (four thousand four hundred euros) in respect of pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(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 applicants’
claim 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
