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SECOND
SECTION
CASE OF PAMUK v. TURKEY
(Application
no. 131/02)
JUDGMENT
STRASBOURG
19
December 2006
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 Pamuk v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 131/02) 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 a Turkish national, Mrs Nazlı Pamuk
(“the applicant”), on 11 September 2001.
- The
applicant was represented by Mr O. Çirim, a lawyer practising
in Izmir. The Turkish Government (“the Government”) did
not designate an Agent for the purpose of the proceedings before the
Court.
- On
4 October 2004 the Court decided to communicate 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
applicant was born in 1943 and lives in Izmir.
-
In 1996 the General Directorate of National Roads and Highways
expropriated land (plot no. 431/4) and a building which the applicant
co owned. The applicant received an amount determined by a
committee of experts at the time of the expropriation.
- On
5 January 1996 the applicant filed an action for additional
compensation with the Izmir Civil Court of First Instance. On 27
December 1999 the first-instance court awarded the applicant
additional compensation plus interest at the statutory rate
applicable at the date of the court's decision. This judgment was
quashed by the Court of Cassation on 17 April 2000.
- On
4 December 2000 the first-instance court awarded the applicant
additional compensation of 3,275,732,664 Turkish liras (TRL)
(approximately 5,470 euros (EUR)),
plus interest at the statutory rate applicable at the date of the
court's decision, running from 12 January 1996. On 12 March 2001 the
Court of Cassation upheld this judgment.
- On
29 August 2001 the administration paid the applicant
TRL 12,352,710,000 (approximately EUR 10,042) covering the
additional compensation, interest, costs and expenses.
II. RELEVANT DOMESTIC LAW AND PRACTICE
9. The
relevant domestic law and practice are outlined in the Aka v. Turkey
judgment of 23 September 1998 (Reports
of Judgments and Decisions 1998-VI,
§§ 17-25).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the additional compensation for
expropriation, which she had obtained from the authorities only after
lengthy court proceedings, had fallen in value, since the default
interest payable had not kept pace with the very high rate of
inflation in Turkey. She relied on Article 8 of the Convention and
Article 1 of Protocol No. 1.
- The
Court considers that this complaint should be examined from the
standpoint of Article 1 of Protocol No.1 alone, which provides:
“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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The Government maintained that the applicant had not
exhausted domestic remedies, as required by Article 35 § 1 of
the Convention since she had failed to request the Court of Cassation
to rectify its judgment pursuant to Article 440 of the Code on Civil
Procedure.
- The applicant disputed the Government's argument.
- The
Court reiterates that it has already examined and rejected the
Government's argument in previous cases (see, in particular, Gök
and Others v. Turkey, nos. 71867/01, 71869/01, 73319/01 and
74858/01, §§ 47 48, 27 July 2006). The Court
finds no particular circumstances, in the present application, which
would require it to depart from that conclusion. Consequently, the
Court rejects the Government's preliminary objection.
- Thus, in the light of the principles it has
established in its case-law (see, among other authorities,
Aka, cited above) and of all the evidence before it, the Court
considers that the application requires examination on the merits and
that there are no grounds for declaring it inadmissible.
B. 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,
in particular, Akkuş v. Turkey, judgment of 9
July 1997, Reports 1997-IV, § 31, and Aka,
cited above, §§ 50-51).
- Having
examined the facts and arguments presented by the Government and the
applicant, the Court considers that there is nothing to warrant a
departure from its earlier findings. It concludes that as a result of
the delay in paying the compensation, the low interest rates and the
length of the proceedings as a whole, the applicant has 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.
II. 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
- The
applicant claimed 48,675 United States dollars (USD), (approximately
EUR 36,273) and USD 14,000 (approximately EUR 10,433) in respect of
pecuniary and non-pecuniary damage, respectively.
- The
Government contested these claims.
- Using the same method of calculation as in the Aka
judgment (cited above, §§ 55-56) and having regard to
the relevant economic data and the applicant's claim, the Court
awards the full amount claimed by the applicant in respect of
pecuniary damage.
- The
Court considers that the finding of a violation constitutes in itself
sufficient compensation for any non-pecuniary damage suffered by the
applicant.
B. Costs and expenses
- The
applicant also claimed USD 1,930 (approximately EUR 1,438) for the
costs and expenses incurred both before the domestic courts and
before the Court.
- The
Government contested her claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 covering costs
under all heads.
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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that finding a violation constitutes
sufficient just satisfaction for any non-pecuniary damage suffered by
the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
36,273 (thirty six thousand two hundred and seventy three euros) in
respect of pecuniary damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
