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FOURTH
SECTION
CASE OF ERDEM AND OTHERS v. TURKEY
(Application
no. 82/02)
JUDGMENT
STRASBOURG
8 January 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 Erdem and Others v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Rıza Türmen,
Stanislav
Pavlovschi,
Lech Garlicki,
Ljiljana
Mijović,
Ján
Šikuta, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 82/02) 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 three Turkish nationals, Mr Ali Erdem, Mr
İbrahim Erdem and Mr İsmail Şenyılmaz
(“the applicants”), on 28 June 2001.
- The
applicants were represented by Mr C. Şanlı, Mr M. Karabıyık
and Mr A. Gündüz, lawyers practising in Istanbul. The
Turkish Government (“the Government”) did not designate
an Agent for the purposes of the proceedings before the Court.
- On
20 December 2005 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
applicants were born in 1940, 1944 and 1933 respectively and live in
Istanbul.
- In
1995 Kocaeli Provincial Private Administration Office (Kocaeli İl
Özel İdare Müdürlüğü)
expropriated a plot of land belonging to the applicants in order to
expand the Kocaeli organised industrial zone. A committee of
experts assessed the value of the plot of land and the relevant
amount was paid to the applicants following the expropriation.
- On
23 October 1996 the applicants brought an action in the Gebze Civil
Court of First Instance requesting additional compensation. The
applicants argued that the plot of land in question should have been
considered as urbanised land (arsa) instead of rural land.
Three on-site inspections were conducted and three separate expert
reports were received by the court. The applicants requested the
court to dismiss two experts who took part in the preparation of a
report, alleging that these experts were not impartial since they
were civil servants. During the hearing on 22 December 1997, the
applicants stated that they agreed to base the additional
compensation on the lowest amount submitted in the expert reports. On
29 December 1997 the First Instance Court decided that the plot
of land in question should be classified as urbanised land and
awarded the applicants a certain amount of additional compensation.
When deciding on the amount of additional compensation, the court
relied on the outcome of another action which qualified the same plot
of land as urbanised land.
- On
16 June 1998 the Court of Cassation quashed the judgment on the
ground that the expert reports were not sufficient basis for a
judgment.
- On
4 November 1998 the Gebze Civil Court of First Instance challenged
the decision of the Court of Cassation (direnme kararı).
The case file was transferred to the Grand Chamber of the Court of
Cassation for Civil Law Matters (Hukuk Genel Kurulu).
- On
23 December 1998 the Grand Chamber of the Court of Cassation quashed
the judgment of 4 November 1998.
- On
9 May 2000 the Gebze Civil Court of First Instance decided that the
plot of land was of rural nature. In reaching this decision, the
court conducted four more on-site inspections and relied on four
additional expert reports, where the experts observed that the plot
was not reserved for habitation under any urban plan (imar planı)
of the Municipality or the Ministry of Public Works and Settlement;
it was not situated within residential areas; and there was no
annotation in the land registry that this plot was to be used for
tourism purposes. Instead, the plot was classified as “field”
in the Land Registry. Following the on site inspections, the
experts decided that the plot should be classified as rural land.
Against this background, the court awarded the applicants an
additional compensation of 22,568,437,760 Turkish liras (TRL)
(approximately 13,080 euros (EUR)) plus interest at the statutory
rate, running from 15 October 1996 for Mr Ali Erdem and from 22
October 1996 for the other applicants.
- On
19 September 2000 the Court of Cassation upheld the judgment.
- On
26 January 2001 the Court of Cassation dismissed the request for
rectification.
- On
20 February 2001 the Kocaeli Provincial Private Administration Office
paid the applicants the total sum of TRL 72,198,960,506
(approximately EUR 41,850) interest included.
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 TO THE
CONVENTION
- The
applicants complained that the authorities had delayed in paying them
the additional compensation and that, at a time
when the annual rate of inflation in Turkey had been very high, they
had been paid insufficient interest. They maintained that the
initial amount of compensation determined by the authorities was too
low since the plot of land was not considered as urbanised land. The
applicants contended also that, although their property was
expropriated on 14 December 1995, the interest started to run from 15
and 22 October 1996. 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. Complaint concerning the authorities' delay in
paying the applicants the additional compensation
1. Admissibility
- The
Government maintained that the applicants had not exhausted domestic
remedies, as required by Article 35 § 1 of the Convention, since
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 preliminary objection in
the case of Aka v. Turkey (cited above, pp. 2678-79, §§
34-37). It sees no reason to do otherwise in the present case and
therefore rejects the Government's objection.
- The Court finds that, in the light of the principles
established in its case-law (see, among other authorities, see Aka,
cited above) and of all the evidence before it, this complaint
requires examination on the merits and there are no grounds for
declaring it inadmissible. It must therefore be declared admissible.
2. 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 in addition 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 which 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.
B. Complaint concerning the initial amount of
compensation determined by the authorities, the classification of the
plot as rural land and the date taken for running of the interest
- The
Court considers that these complaints should be examined under
Article 6 § 1 of the Convention.
- The
Government disputed the applicants' allegations and invited the Court
to declare this part of the application inadmissible.
- The
Court reiterates that the establishment of the facts and the
assessment of the evidence are primarily matters for the domestic
courts, and that the Court's supervisory jurisdiction is limited to
ensuring that the applicants' Convention rights have not been
breached (see, among many others, García
Ruiz v. Spain [GC], no. 30544/96, §§
28-29, ECHR 1999 I).
- The
Court considers that it is not required to decide on what basis the
domestic courts should have assessed the amount of compensation
payable. As it has reiterated on a number of occasions, it cannot
take the place of the domestic courts in determining what method of
calculation should have been taken into consideration for the
estimation of the value of the expropriated land and for the
assessment of the sums due in consequence (see, mutatis mutandis,
Malama v. Greece, no. 43622/98, § 51, 1 March 2001).
This being so, the Court observes that the Gebze Civil Court of First
Instance examined four different expert reports in determining the
nature of the land in question and relied on the findings of the
experts who assessed the nature of the plot by examining many
different elements, such as the land registry records, the location
of the plots and the local zoning plans (see paragraph 10 above).
Having regard to the facts and documents submitted by the parties,
the Court concludes that the applicants were fully able to state
their case and that there is nothing to indicate that the assessment
of the evidence was arbitrary or the proceedings otherwise unfair
under Article 6 of the Convention.
- In
the light of the above considerations, the Court concludes that the
complaints under Article 6 § 1 are to be rejected as being
manifestly ill founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained that the length of the civil proceedings
had contravened the “reasonable time” requirement under
Article 6 § 1 of the Convention. They further alleged that they
had been denied a fair trial since the experts, who played an
important role in the process of determining the value of the plot of
land, were civil servants and, thus, were not impartial.
Article
6 § 1 of the Convention provides, insofar as relevant as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Length of the proceedings
1. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
2. Merits
- In
the light of its findings with regard to Article 1 of Protocol No. 1
(paragraph 21 above), the Court does not consider that a separate
examination of the merits of the case under Article 6 § 1 is
necessary.
B. Expert evidence
- As regards the alleged bias of the experts, the Court
recalls that the guarantees of independence and impartiality under
Article 6 of the Convention concern solely the courts (see, Rezzonico
v. Italy (dec.), no. 43490/98, 15 November 2001). This being so,
the Court does not find any evidence on which to call into question
the independence and impartiality of the members of the Gebze Civil
Court of First Instance for the purposes of Article 6 of the
Convention. It considers therefore that the
applicants have failed to lay the basis of an arguable claim that any
of the procedural guarantees contained in Article 6 were breached in
their case. Nor is there any evidence or basis on which to conclude
that the domestic courts, in evaluating the facts or interpreting the
domestic law, acted in an arbitrary or unreasonable manner.
- It
follows that this complaint must be rejected as being manifestly
ill founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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
1. Pecuniary damage
- The applicants sought compensation for pecuniary
damage in the following sums, depending on the nature of the finding
of a violation by the Court:
- 521,847, United States dollars (USD) should the Court decide that
the initial amount of compensation determined by the authorities was
too low;
- USD 383,148 if the Court holds that the applicants' loss should be
calculated as from December 1995;
- USD 190,290 should the Court conclude that the applicants' loss
should be calculated as from October 1996.
- The
Government contested this claim.
- Using
the same method of calculation as in the Aka judgment (cited
above, pp. 2683-84, §§ 55-56) and having regard to the
relevant economic data, the Court awards the applicants, jointly, EUR
208,500 for pecuniary damage.
2. Non-pecuniary damage
- The
applicants each claimed USD 10,000 in respect of non pecuniary
damage.
- The
Government submitted that no award should be made under this heading.
- 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 applicants.
B. Costs and expenses
- The
applicants also claimed USD 27,318 for the costs and expenses
incurred both before the domestic courts and the European Court.
- The
Government contended that the applicants' claim was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 above criteria
and the applicants' failure to substantiate their claim, the Court
makes no award under this heading.
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 complaint concerning the
authorities' delay in paying the applicants the additional
compensation and the length of proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaint under Article 6 of the Convention concerning the length of
proceedings;
- Holds 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
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 in
accordance with Article 44 § 2 of the Convention,
EUR 208,500 (two hundred and eight thousand five hundred euros) in
respect of pecuniary damage, plus any taxes that may be chargeable,
to be converted into New 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy
Registrar President
