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SECOND
SECTION
CASE OF BORA v. TURKEY
(Application
no. 14719/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
25
January 2011
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 Bora v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Kristina
Pardalos, judges,
and
Stanley Naismith,
Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 14719/03)
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
Sabri Bora (“the applicant”),
on 8 March 2003.
- In
a judgment delivered on 9 February 2010 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 to the Convention (see Bora v. Turkey,
no. 14719/03, 9 February 2010).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of 800,000 euros (EUR) in respect of pecuniary damage and EUR 200,000
in respect of non-pecuniary damage. In addition, the applicant,
without specifying an amount, requested the reimbursement for the
costs and expenses incurred before the Court.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., § 29, and
point 3 of the operative provisions).
- The
principal judgment became final on 9 May 2010.
- The
applicant and the Government each filed observations on the
outstanding issue.
THE LAW
- 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
- In
his observations dated 2 June 2010 the applicant claimed EUR 800,000
in respect of pecuniary damage. This sum corresponded to the value of
land no. 46. In his observations dated 20 September 2010 the
applicant also referred, without any further elaboration, to loss of
rent and costs and expenses.
- The
Government claimed that the amount requested was unsubstantiated.
Moreover, they, relying on the findings of an experts' report dated
12 July 2010 and its annexes including photographs, submitted that
the applicant had not suffered any pecuniary damage as the land that
had been allocated to him was of higher value than his original land.
According to the report the applicant's current plot of land (no.
2624/6) was evaluated as worth 302,000 Turkish liras (TRL)
(approximately EUR 153,651) whereas his original plot of land
(no. 2627/8) was evaluated as worth TRL 215,000 (approximately EUR
109,387).
- The
applicant objected to the above report on the ground that the
experts' report was not objective. In addition, he contested the
calculated value of the land in question.
- In
accordance with the Court's settled jurisprudence, a judgment in
which it finds a breach imposes on the respondent State a legal
obligation to put an end to the breach and make reparation for its
consequences in such a way as to restore as far as possible the
situation existing before the breach (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 32, ECHR 2000 XI).
Since in the instant case restitution is impossible due to the
transfer of the applicant's original property to bona fide
third persons, the Court considers that the respondent Government
should pay the difference of value between his original and current
property provided that there is no hindrance such as that noted in
the first-instance court's judgment of 29 May 1995 for its
peaceful enjoyment (see Bora v. Turkey, § 24, cited
above).
- According
to the expert report submitted by the Government, the applicant's
current plot of land has a higher value than his original plot of
land and there appears to be no longer a building on it belonging to
third-persons hindering the applicant's right to peaceful enjoyment
of his property. The applicant has objected to the contents of this
report. However, he has failed to submit relevant documents to prove
the contrary. Moreover, he has neither elaborated nor submitted
documentation regarding his other requests for pecuniary damage in
the form loss of rent or costs and expenses. In view of the above the
Court dismisses the applicant's request for pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed EUR 200,000 in respect of non-pecuniary damage.
- The
Government contested that claim.
- The
Court sees no reason to doubt that the applicant suffered distress as
a result of the non-enforcement of the judgment in his favour, which
is why a finding of a violation alone would not constitute sufficient
just satisfaction within the meaning of Article 41.
- Having
regard to the above and on the basis of equity, as required by
Article 41, the Court awards the applicant EUR 9,360 under this
head.
B. 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
- 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 9,360 (nine thousand
three hundred and sixty euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, 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 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
