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FIFTH
SECTION
CASE OF KIR AND OTHERS v. TURKEY
(Application
no. 67145/01)
JUDGMENT
STRASBOURG
10
August 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 Kır and Others v. Turkey,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr R. Türmen,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 67145/01) 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 five Turkish nationals, Ms Habibe Kır,
Ms Feriştah Çenesiz, Mr Hasan Çenesiz,
Ms Fatma Ekiz and Mr Ali Çenesiz (“the
applicants”), on 19 November 2000.
- The
applicants were represented by Mr Mahmut Akdoğan, a lawyer
practising in Mersin. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
30 September 2004 the Court (Third Section) declared the application
inadmissible in respect of Mr Ali Çenesiz and decided to
communicate the application to the Government in respect of the rest
of the applicants. 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.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants Ms Habibe Kır, Ms Feriştah Çenesiz,
Mr Hasan Çenesiz and Ms Fatma Ekiz were born in
1926, 1941, 1951 and 1951 respectively and live in Mersin.
- On
17 December 1992 the General Directorate of National Roads and
Highways expropriated plots of land belonging to the applicants in
Mersin in order to build a motorway. A committee of experts assessed
the value of the plots and the relevant amounts were paid to them
when the expropriation took place.
- On
28 December 1994, following the applicants’ requests for
increased compensation, the Mersin Civil Court awarded them an
additional compensation of 131,387,300 Turkish liras (TRL) plus
interest at the statutory rate, applicable at the date of the court’s
decision, running from the date of transfer of title deeds of the
plots of land.
- On
14 September 1998 the Court of Cassation upheld the judgment of the
Mersin Civil Court.
- On
22 June 2000 the General Directorate of National Roads and Highways
paid the amount of TRL 556,290,000 to the applicants, interest
included.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the case of Akkuş
v. Turkey (judgment of 9 July 1997, Reports of Judgments and
Decisions 1997-IV).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that the additional compensation for
expropriation, which they had obtained from the authorities after
more than three years and eight months of court proceedings, had
fallen in value, since the default interest payable had not kept pace
with the very high rate of inflation in Turkey. They relied on
Article 1 of Protocol No. 1, which reads insofar as relevant as
follows:
“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.”
A. Admissibility
- The
Court finds that, in the light of the principles it has established
in its case-law (see, among other authorities, Akkuş,
cited above) and of all the evidence before it, this complaint
requires examination on the merits and 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
Akkuş, cited above, p. 1317, § 31).
- Having
examined the facts and arguments presented by the Government, the
Court considers that there is nothing to warrant a departure from its
findings in the previous cases. It finds that the delay in paying for
the additional compensation awarded by the domestic courts was
attributable to the expropriating authority and caused the owners a
loss additional to that of the expropriated land. As a result of that
delay and the length of the proceedings as a whole, the Court finds
that the applicants have had to bear an individual and excessive
burden that 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained under Article 6 § 1 of the Convention
of the unreasonable length of the court proceedings.
A. Admissibility
- The Court notes that this complaint 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.
B. Merits
- In the light of its findings with regard to Article 1
of Protocol No. 1, the Court considers that no separate
examination of the case under Article 6 § 1 is
necessary.
III. 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. Pecuniary and non-pecuniary damage
- The
applicants sought compensation for pecuniary damage in the sum of
11,409 US dollars (USD). They also claimed compensation for
non-pecuniary damage of USD 5,000.
- The
Government contested their claims.
- Using
the same method of calculation as in the Akkuş judgment
(cited above, p. 1311, §§ 35-36 and 39) and having regard
to the relevant economic data, the Court awards the applicants 397
euros (EUR) for pecuniary damage.
- The
Court considers that the finding of a violation of Article 1 of
Protocol No. 1 constitutes in itself sufficient compensation for any
non pecuniary damage suffered by the applicants.
- The
applicants also claimed USD 1,552
for the legal fees, costs and expenses incurred before the Court.
- The
Government contested those claims.
- The
Court considers that the claimed costs and expenses were necessarily
and actually incurred and are fully documented. Accordingly, the
Court considers that the applicants should be awarded the full amount
claimed.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds that, given its finding of a violation of
Article 1 of Protocol No. 1, it is unnecessary to examine the
complaint under Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
sums plus any tax that may be chargeable, to be converted into New
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
397 (three hundred ninety seven euros) in respect of pecuniary
damage;
(ii) EUR
1,300 (one thousand three hundred euros) in respect of costs and
expenses;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
