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SECOND
SECTION
CASE OF IŞIK AND OTHERS v. TURKEY
(Application
no. 10434/08)
JUDGMENT
STRASBOURG
3 November
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 Işık and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10434/08) 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 Haydar Işık,
Mr Nuri Işık and Mr Rıza Işık (“the
applicants”), on 15 January 2008. The applicants were
represented by Mr A.F. Demirkan, a lawyer practising in Bursa. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
12 June 2009 the President of the
Second Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1941, 1946 and 1948 respectively and live in
Bursa.
- In
2004 the General Directorate of Highways seized a plot of land
belonging to the applicants without any formal expropriation, for the
construction of a highway. The applicants brought an action before
the Karacabey Civil Court to obtain compensation for the de facto
expropriation of their property. They requested 6,500 Turkish liras
(TRY) as compensation from the court and reserved their right to
increase this claim in due course.
- On
16 November 2006 the Karacabey Civil Court awarded the applicants TRY
6,500 as compensation for the de facto expropriation of their
land, as requested, plus interest. The applicants initiated execution
proceedings before the Bursa Execution Office to obtain that amount
(file no. 2009/2793).
- On
13 March 2007 the Court of Cassation upheld the judgment of the
first-instance court.
- The
applicants subsequently brought an additional action (“ek
dava”) before the Karacabey Civil Court to obtain further
compensation for their land in the light of the expert report
obtained during the previous proceedings, which had valued the land
at a rate higher than that initially requested by them.
- On
10 May 2007 the Karacabey Civil Court awarded the applicants TRY
158,626.30, plus interest. The applicants initiated another set of
execution proceedings before the Bursa Execution Office to obtain the
amount awarded (file no. 2007/6182).
- On
16 October 2007 the Court of Cassation upheld the judgment of the
Karacabey Civil Court.
- On
20 March 2009 the administration paid TRY 10,297.75. According
to the information provided by the applicants, there has been no
outstanding debt in the execution files.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained that the authorities’ prolonged failure
to fully comply with the binding and enforceable judgments in their
favour violated their right to a court under Article 6 of the
Convention and their right to the peaceful enjoyment of their
possessions under Article 1 of Protocol No. 1.
- The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and are
not inadmissible on any other grounds. They must therefore be
declared admissible.
- The
Court observes that even though the authorities discharged the final
payment on 20 March 2009 of the debt arising from Karacabey Civil
Court’s judgments, the Government failed to make any
submissions which would justify the delay of twenty four months in
the enforcement of the judgments in the applicants’ favour.
- The
Court notes 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, and Burdov
v. <<Russia>>
(no. 2), no. 33509/04, §§ 65-88, 15 January 2009).
There are no arguments in the case capable of persuading the Court to
reach a different conclusion.
- 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
authorities’ failure to duly execute the judgments of Karacabey
Civil Court.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
- The
applicants claimed TRY 130,000 (approximately 61,700 euros (EUR)) in
respect of pecuniary damage, corresponding to the potential rental
income they had been deprived of since the de facto
expropriation of their land. As regards non-pecuniary damage, the
applicants claimed that they had suffered distress and hardship on
account of the non-payment of the domestic judgment debts and
requested compensation for this in an amount to be determined by the
Court. As for costs and expenses, the applicants requested the Court
to make an award for the work conducted by their lawyers in the
present case, leaving the amount to be determined by the Court.
- The
Government contested these claims.
- The
Court notes that it has found a violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 by reason of the State
authorities’ delayed execution of final judicial decisions.
- The
Court further notes that where a domestic judgment in an applicant’s
favour was executed, the Court does not make any award in respect of
the initial judgment debt. In this respect, the Court does not
discern any causal link between the violation found and the pecuniary
damage alleged; it therefore, rejects this claim.
- On the other hand, the Court considers that the
applicants must have suffered some non-pecuniary damage which cannot
be sufficiently compensated by the finding of a violation alone.
Consequently, taking into account the circumstances of the case, in
particular the period of delay in the enforcement of domestic court
judgments, and making its assessment on an equitable basis, the Court
awards the applicants EUR 2,400, jointly, as non pecuniary
damage.
- As
for costs and expenses, the Court notes that according to its
case law, an applicant is entitled to reimbursement of his or
her 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 lack of any
quantified submissions, the Court makes no award 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
- Declares the application
admissible;
- Holds that there has been a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400 (two thousand four
hundred euros), jointly, 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
