SAHIDE KORKMAZ v. TURKEY - 31462/07 [2011] ECHR 1108 (12 July 2011)


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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> SAHIDE KORKMAZ v. TURKEY - 31462/07 [2011] ECHR 1108 (12 July 2011)
    URL: http://www.bailii.org/eu/cases/ECHR/2011/1108.html
    Cite as: [2011] ECHR 1108

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    SECOND SECTION







    CASE OF ŞAHİDE KORKMAZ v. TURKEY


    (Application no. 31462/07)











    JUDGMENT




    STRASBOURG


    12 July 2011



    This judgment is final but it may be subject to editorial revision.

    In the case of Şahide Korkmaz v. Turkey,

    The European Court of Human Rights (Second Section), sitting as a committee composed of:

    David Thór Björgvinsson, President,
     Giorgio Malinverni,
     Guido Raimondi, judges,
    and Françoise Elens-Passos, Deputy Section Registrar,

    Having deliberated in private on 21 June 2011,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 31462/07) 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, Ms Şahide Korkmaz (“the applicant”), on 16 July 2007. The applicant was represented by Mr T. Tepe and Ms. G. Aydın, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

  2. On 10 September 2009 the President of the Second Section decided to give notice of the application to the Government.

    3. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  3. The applicant was born in 1946 and lives in Istanbul.

  4. On an unspecified date in the late 1980s the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü) (“the General Directorate”) decided to partially expropriate the applicant’s land located in the Küçükçekmece district of Istanbul. The applicant only found out about this expropriation in May 2004.

  5. On 21 May 2004 the applicant brought a civil action before the Küçükçekmece Civil Court for additional expropriation compensation.

  6. On 21 June 2004 the title to the property was transferred to the General Directorate.

  7. On 19 July 2005 the Küçükçekmece Civil Court awarded the applicant 783,749,741,900 Turkish liras (TRL) as additional compensation, plus interest at the statutory rate.

  8. On 6 March 2006 the Court of Cassation upheld the first-instance court’s judgment.

  9. The applicant subsequently initiated execution proceedings before the Şişli Execution Office to obtain her additional compensation.

  10. On 31 July 2008 the applicant received a partial payment of 1,159,699.20 Turkish liras (TRY1).

  11. On 5 August 2008 the applicant brought a case before the Şişli Execution Court in respect of the General Directorate’s outstanding debt and the interest rate that should be applied to that amount.

  12. On 24 October 2008 the Şişli Execution Court held that the General Directorate had an outstanding debt of TRY 479,605.44, payable with an interest rate of 30%2 running from 31 July 2008.

  13. On 14 November 2008 the General Directorate appealed the judgment of the Şişli Execution Court. On 2 June 2009 the Court of Cassation upheld that judgment.

  14. On 12 April 2010 the General Directorate paid the applicant TRY 745,797.18 to discharge its outstanding debt, together with interest.

    15. II.  RELEVANT DOMESTIC LAW

  15. The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV); Aka v. Turkey (judgment of 23 September 1998, Reports 1998-VI); Gaganuş and Others v. Turkey (no. 39335/98, §§ 15-19, 5 June 2001); Ak v. Turkey (no. 27150/02, §§ 11-13, 31 July 2007); Sarıca and Dilaver v. Turkey, no. 11765/05, § 26, ECHR 2010 ...

    16. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

  16. The applicant complained under Article 1 of Protocol No. 1 of the delay with which the domestic authorities executed the domestic court judgment in her favour, and the financial loss brought about by this delay on account of the low interest rates.

  17. The Government contested these arguments, maintaining that the domestic procedure had been carried out in accordance with the Expropriation Act (Law no. 2942) and the relevant provisions of the Constitution.

  18. The Court finds it appropriate to examine these complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Miroshnik v. Ukraine, no. 75804/01, §§ 40 and 41, 27 November 2008).

    19. A.  Delayed execution of the domestic court judgment

  19. The Court notes that this part of 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.

  20. As regards the merits, the Court notes that the authorities effected the first payment two years and three months after the Court of Cassation’s final decision and that the second payment was made more than four years after the said decision. The Government’s submissions do not contain any justification for such substantial delays in the enforcement of the judgment in the applicant’s favour.

  21. The Court observes that it has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to those raised in the present case (see, for instance, Burdov v. Russia, no. 59498/00, §§ 34-42, ECHR 2002-III; Kaçar and Others v. Turkey, nos. 38323/04, 38379/04, 38389/04, 38403/04, 38423/04, 38510/04, 38513/04, and 38522/04, §§ 22-25, 22 July 2008; Burdov v. Russia (no. 2), no. 33509/04, §§ 65-88, ECHR 2009 ...). There are no arguments in the case capable of persuading the Court to reach a different conclusion.

  22. Accordingly, the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the delayed enforcement of the judgment of the Küçükçekmece Civil Court of 19 July 2005.

    23. B.  Financial loss caused by the delayed payment

  23. The Court finds that, using the method of calculation adopted in the case of Akkuş (cited above, §§ 35 and 36) and having regard to the relevant economic data, including the interest and inflation rates, at the material time, the applicant received more than 100% of the full compensation owed to her on the date of the second payment. Therefore, she suffered no financial damage on account of the delayed payment of the compensation awarded by the Küçükçekmece Civil Court.

    24. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

    II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

    A.  Damage and costs and expenses

  24. The applicant claimed 1,000,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 for non-pecuniary damage. She also claimed EUR 25,000 for the costs and expenses incurred before the Court. She did not submit any documents to substantiate her claims.

  25. The Government contested these claims as unsubstantiated and excessive.

  26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, ruling on an equitable basis, it awards the applicant EUR 3,500 in respect of non-pecuniary damage.

  27. As for costs and expenses, the Court makes no award under this head as the applicants have failed to substantiate their claims.

    28. B.  Default interest

  28. 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.

    29. FOR THESE REASONS, THE COURT UNANIMOUSLY

  29. Declares the complaint concerning the delayed execution of the domestic court judgment under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;


  30. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;


  31. Holds

    32. (a)  that the respondent State is to pay the applicant, within three months, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-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;


  32. Dismisses the remainder of the applicant’s claim for just satisfaction.

    33. Done in English, and notified in writing on 12 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Françoise Elens-Passos David Thór Björgvinsson Deputy Registrar President

    1.  On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1= TRL 1,000,000.

    2.  Which was the maximum interest rate laid down for State debts at the relevant date.

     


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URL: http://www.bailii.org/eu/cases/ECHR/2011/1108.html