AYANGIL AND OTHERS v. TURKEY - 33294/03 - Chamber Judgment [2013] ECHR 861 (24 September 2013)

In the case of Ayangil and Others v. Turkey,

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

          Guido Raimondi, President,
          Danutė Jočienė,
          Dragoljub Popović,
          András Sajó,
          Işıl Karakaş,
          Paulo Pinto de Albuquerque,
          Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 3 September 2013,

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

PROCEDURE

1. The case originated in an application (no. 33294/03) 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 four Turkish nationals, Ms Fidan Ayangil, Ms Fatma Ayangil, Mr Mehmet Ayangil and Ms Vildan Tatlı (Ayangil) (“the applicants”), on 2 September 2003.

2. In a judgment delivered on 6 December 2011 (“the principal judgment”), the Court held that the interference with the applicants’ right to peaceful enjoyment of their possessions and the failure to award any compensation to the applicants had upset, to their detriment, the fair balance which has to be struck between the protection of property and the requirements of the general interest, in breach of Article 1 of Protocol No. 1 to the Convention (see Ayangil and Others v. Turkey, no. 33294/03, § 55, 6 December 2011).

3. Under Article 41 of the Convention the applicants sought just satisfaction for the damage that they had sustained as a result of the interference and the lack of compensation.

4. 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 applicants 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., § 59, and point 3 of the operative provisions).

5. The applicants and the Government each duly submitted observations.

THE LAW

6. 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. The parties’ submissions

(a) The applicants

7. The applicants claimed 350,000 euros (EUR) in respect of pecuniary damage. In this connection, they relied on a valuation report dated 14 April 2008 prepared by experts from a property company. According to that report, the market value of the plot of land which had been subjected to de facto occupation by the authorities was estimated at 540,000 Turkish Liras (TRL) (approximately EUR 270,000 at the relevant time). With reference to the same valuation report, the applicants argued that, given the location of their land, a seven-storey block of flats could have been constructed on it and that from the sale of those flats they could have earned EUR 430,000.

8. The applicants further claimed EUR 200,000 in non-pecuniary damages for the stress and anxiety suffered by them and their father, who had been struggling to resolve the problem since 1968.

(b) The Government

9. The Government submitted that the amounts claimed by the applicants were speculative and excessive as they were based solely on an estimate made by a private company. The valuation report prepared by that company was not legally binding. It was highly probable that subjective factors had influenced the private company’s estimate of the value of the plot of land.

10. The Government referred to the property tax declaration submitted by the applicants’ father on 19 March 2012 to the land registry office attached to the Çankaya Municipality in Ankara. In his declaration the applicants’ father declared that the real value of the property in question was TRL 108,184.56 (approximately EUR 46,000). The Government therefore asked the Court not to exceed the aforementioned amount when awarding pecuniary damages to the applicants.

2. The Court’s assessment

11. The Court reiterates that 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 Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001-I).

12. The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States, under Article 1 of the Convention, to secure the rights and freedoms guaranteed. If the nature of the breach allows restitutio in integrum, it is for the respondent State to implement it. If, however, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).

13. In the principal judgment the Court found that the applicants had not received any compensation for the occupation of part of their plot of land and the restriction on the use of their house, despite having brought an action for damages in the Turkish courts. Thus, in the circumstances of the present case, an award of compensation for the pecuniary loss in question seems to be the most appropriate just satisfaction for the applicants.

14. In this context, the Court reiterates that when the basis of the violation found is the lack of any compensation, rather than the inherent illegality of the interference with the applicants’ right to peaceful enjoyment of their possessions, the compensation need not necessarily reflect the full value of the property (see I.R.S. and Others v. Turkey (just satisfaction), no. 26338/95, §§ 23-24, 31 May 2005; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 254-259, ECHR 2006-V; and Stornaiuolo v. Italy, no. 52980/99, §§ 82-91, 8 August 2006). It therefore deems it appropriate to fix a sum that would correspond to the applicants’ legitimate expectations to obtain compensation for the seizure of part of their plot of land and the restriction on the use and depreciation in value of their house.

15. On that account, the Court notes that the applicants submitted an expert report indicating the damage suffered by them at EUR 350,000 (see paragraph 7 above). The Government contested that assessment and invited the Court to rely on the amount contained in the property tax declaration made by the applicants’ father, namely EUR 46,000 (see paragraph 10 above). In the light of the foregoing, the Court observes that there is a considerable divergence between the amounts proposed by the applicants and the Government.

16. In order to determine the compensation that should be awarded to the applicants, the Court considers it appropriate to base its findings on the assessment made by the domestic courts, although it does not consider itself bound by their findings (see, mutatis mutandis, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 85, 19 February 2009). In this connection, it notes that by a judgment dated 23 May 2001, the Ankara Civil Court of First Instance had already awarded the applicants TRL 99,976,950,917 (equivalent to EUR 104,525 at that time) for the damage suffered (see paragraph 14 of the principal judgment).

17. Taking into account the lapse of time and the effects of inflation, and in accordance with the inflation calculator used by the Central Bank of the Republic of Turkey (http://www.tcmb.gov.tr/), which covers the interest, (see Yetiş and Others v. Turkey, no. 40349/05, §§ 27 and 74, 6 July 2010), the Court finds that the above amount would currently correspond to TRL 425,000, equivalent to approximately EUR 180,000.

18. Consequently, the Court awards the applicants, jointly, EUR 180,000 for pecuniary damage.

19. As regards the applicants’ claim for non-pecuniary damages, having regard to the facts of the case, and ruling on an equitable basis, the Court awards the applicants EUR 1,000 each, that is, a total of EUR 4,000, plus any tax that may be chargeable on that amount (see Scordino v. Italy (no. 1), cited above, § 278).

B. Costs and expenses

20. The applicants claimed EUR 2,500 for the costs and expenses which they incurred during the proceedings before the courts in Turkey. In this connection, they submitted invoices proving the payment of various sums before the domestic courts.

21. The Government submitted that the amounts claimed were unsubstantiated and excessive.

22. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

23. In the present case, regard being had to the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings (see Desde v. Turkey, no. 23909/03, § 147, 1 February 2011). Furthermore, given the applicants’ failure to submit any quantified claim in respect of the costs and expenses incurred before the Court, it makes no award under this head (see Usta and Others v. Turkey, no. 57084/00, § 76, 21 February 2008).

C. Default interest

24. The Court considers it appropriate that the default interest rate 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,

1. 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, the following amounts, to be converted into Turkish lira at the rate applicable at the date of settlement:

(i) EUR 180,000 (one hundred and eighty thousand euros) plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 4,000 (four thousand euros) plus any tax that may be chargeable, for non-pecuniary damage;

(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;

2. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi Registrar President

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