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SECOND
SECTION
CASE OF DEVECİOĞLU v. TURKEY
(Application
no. 17203/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
24
November 2009
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 Devecioğlu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17203/03) 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 two Turkish nationals, Mr Serhat Devecioğlu
and Mrs Feriha Devecioğlu (“the applicants”), on 2
May 2003 respectively.
- In
a judgment delivered on 13 November 2008 (“the principal
judgment”), the Court held that the failure to award any
compensation to the applicants for the deprivation of a portion of
their land had amounted to a violation of Article 1 of Protocol No. 1
to the Convention (Devecioğlu v. Turkey, no.
17203/03, § 41, 13 November 2008).
- Under
Article 41 of the Convention the applicants sought just satisfaction
for the damage they had sustained as a result of the deprivation of
their land.
- 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., § 51, and point
4 of the operative provisions).
- In
a letter dated 2 February 2009 the applicants reiterated their claims
on just satisfaction. The Government did not reply to this letter.
- In
a letter of 10 February 2009 the Government requested the referral of
the case to the Grand Chamber. This requested was rejected by the
panel of five judges of the Grand Chamber on 4 May 2009.
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. The parties' submissions
(a) The applicants
- The
applicants claimed 760,927.5 New Turkish Liras (TRY) (434,743.24
euros (EUR)) in respect of pecuniary damage. They explained that the
total surface of the land which had been taken by the authorities was
8,454.75 square metres and that the market value of this land was
approximately TRY 90 (EUR 51.42) per square metre.
- In
this connection, the applicants relied on an assessment report dated
27 October 2007, prepared by a real estate agent, a map and a
cadastral expert's report on the value of land on Marmara island,
which is the largest island in the Sea of Marmara and
the centre of Marmara district in Balıkesir province. According
to the latter report, land prices on the island had increased as a
result of tourist development. In the area where the land at issue
was situated, land prices per square metre ranged from TRY 80 to TRY
150. The applicants' land could, in their view, be sold at an average
price of TRY 90 per square metre.
- The
applicants also claimed TRY 50,000 (28,571.42) for non pecuniary
damage. They noted in this connection that they had been living in
poverty since their land had been seized by the authorities. The
first applicant was a housewife who receives part of a pension from
her deceased husband and had no other income. The second applicant
was compelled to leave the country as a result of his poor financial
situation and has moved to the United States where he is struggling
to make a living in difficult conditions.
(b) The Government
- The
Government submitted that the amounts claimed by the applicants were
speculative and unsubstantiated as they were based solely on the oral
information gathered by their representative. No substantiating
documents had been submitted with regard to these figures.
Furthermore, a realistic valuation regarding the land in question was
not possible given that the land was located within the forest area
and thus could not be subjected to any market analysis. They further
contended that the applicants' claim for non-pecuniary damages was
excessive.
2. The Court's assessment
- The
Court recalls 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
(Brumărescu v. Romania (just satisfaction) [GC], no.
28342/95, § 19, ECHR 2001 I).
- 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, Series A no. 330-B, pp. 58-59, § 34).
- In
the principal judgment the Court found that the applicants did not
receive any compensation for the transfer of their property to the
Treasury, 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.
- 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 taking, the compensation need not
necessarily reflect the full value of the property (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
lump sum that would correspond to the applicants' legitimate
expectations to obtain compensation.
- In
view of the above, the Court awards the applicants, jointly,
EUR 100,000 for pecuniary damage.
- As
regards the applicants' claim for compensation for non-pecuniary
damages, the Court finds that, in the circumstances of the present
case, the finding of a violation constitutes sufficient just
satisfaction (see I.R.S. and others, cited above, § 28).
B. Costs and expenses
- As
regards costs and expenses, the applicants contended that, although
they and their predecessors had incurred substantial costs during the
sixteen-year legal struggle, between 1986 and 2002, before the
domestic courts and Strasbourg Court, a symbolic amount of EUR 30,000
would be an appropriate amount to be awarded by the Court. This sum
included fees and administrative costs incurred (including 196 hours'
legal work and expenses such as telephone calls, postage,
photocopying and stationery).
- The
Government submitted that the amounts claimed were baseless and
excessive.
- 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 were reasonable as to
quantum. In the present case, although the applicants submitted a
time schedule indicating the time spent for the preparation and
submission of their application, the Court considers excessive the
total number of hours of legal work and the amounts claimed per hour
(250 US dollars). Furthermore, the applicants failed to submit any
supporting documents in respect of their administrative costs.
- In
view of the foregoing, and having regard to the details of the claims
submitted by the applicants, the Court finds it reasonable to award
EUR 5,000 to them, jointly, under this head.
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
- Holds
(a) that
the respondent State is to pay the applicants, jointly, 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 liras at the rate
applicable at the date of settlement:
(i) EUR
100,000 (one hundred thousand euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable to
the applicants, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] 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 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
