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SECOND
SECTION
CASE OF M. ALİ DURMAZ v. TURKEY
(Application
no. 22261/03)
JUDGMENT
STRASBOURG
8
January 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 M. Ali Durmaz v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22261/03) 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 a Turkish national, Mr M. Ali Durmaz (“the
applicant”), on 7 May 2003.
- The
applicant was represented by Mr M. Birlik, a lawyer practising in
Şanlıurfa. The Turkish Government (“the Government”)
were represented by their Agent.
- On
14 September 2007 the Court decided to give notice of 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 1927 and lives in Gaziantep.
- In
2000 the Ministry of Energy and Natural Resources (“the
Ministry”) expropriated two plots of land belonging to the
applicant (plot no. 247 in block no. 103 and plot no. 14 in block no.
130) in Erenköy village, Nizip, for the construction of the
Birecik dam.
- On
23 May 2000 the applicant brought two separate actions before the
Nizip Civil Court for additional compensation.
- On
22 and 25 December 2000 respectively the Nizip Civil Court
awarded the applicant additional compensation plus interest at
the statutory rate, running from 9 June 2000 (judgments nos.
2000/5137 and 2000/4790).
- On
9 July 2001 the Court of Cassation upheld the judgments of the
first instance court.
- On
30 April 2003 the Ministry made a partial payment to the applicant,
namely 23,449,000,000 Turkish liras (TRL)
for plot no. 247 and TRL 13,494,000,000
for plot no. 14.
- On
2 May 2003 the Birecik Execution Office issued a payment order to the
Ministry where it informed the latter that it had an outstanding debt
of TRL 3,073,350,480
for plot no. 247 and TRL 1,804,328,414
for plot no. 14.
- On
28 June 2007 the applicant's representative sent a letter to the
Ministry whereby he agreed to accept the calculations made by the
administration for the discharge of its outstanding debt.
- On
8 July 2008 the Government informed the Court that they had not yet
made any further payments to the applicant to discharge their
outstanding debt.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the Çiçek
and Öztemel and Others v. Turkey judgment of 3 May 2007
(nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02
and 30383/02, §§ 14 15).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the excessive delay
in the payment of the additional compensation he was awarded
following the expropriation of his properties, coupled with the low
interest rates, had caused him to suffer a financial loss. He
relied on Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
A. Admissibility
- The
Government submitted that on 28 June 2007, subsequent to the lodging
of the application with the Court, the applicant's representative had
signed an agreement with the administration where he agreed to accept
the amount to be paid by the latter in relation to the outstanding
debt. The Government stated that this was an explicit manifestation
of the applicant's will to put an end to litigious proceedings
commenced against the administration and asked the Court to declare
the application inadmissible due to the applicant's loss of victim
status.
- The
Government also maintained that the applicant had not exhausted
domestic remedies as required by Article 35 of the Convention, as he
had failed to make proper use of the remedy available to him under
Article 105 of the Code of Obligations. Under that provision, he
would have been eligible for compensation for the losses allegedly
sustained as a result of the delays in payment of the additional
compensation if he had established that the losses exceeded the
amount of default interest.
- With
regard to the Government's first preliminary objection, the Court
observes that the document signed by the applicant's representative
on 28 June 2007 does not indicate any intention to waive the
outstanding compensation claims or any other rights and claims the
applicant may have against the administration. Nor does it entail an
agreement to withdraw the applicant's complaints raised before the
Court. Accordingly, the Court finds that the applicant can still
claim to be the victim of the alleged violations of Article 6 §
1 of the Convention as well as Article 1 of Protocol No. 1.
- As
regards the Government's “non-exhaustion” objection, the
Court observes that it dismissed a similar preliminary objection in
the case of Aka v. Turkey (23 September 1998, §§
34-37, Reports of Judgments and decisions 1998-VI). It sees no
reason to do otherwise in the present case and therefore rejects the
Government's objection.
- The
Court notes that the application 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. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the applicant was paid the principal
amount of the additional compensation awarded by the domestic courts
and that Article 1 of Protocol No. 1 did not guarantee a right to
full compensation of the market value of a property in all
circumstances.
- The
applicant maintained his allegations and contested the Government's
arguments.
- The
Court observes from the documents in the case file that the applicant
has still not been paid the totality of the amounts due by the
authorities, which is also acknowledged by the respondent Government
in its letter of 8 July 2008. The Nizip Civil Court's judgments of
22 and 25 December 2000, therefore, remain unenforced
in part.
- In
these circumstances, the Court is of the view that although the
applicant does not specifically mention it in his complaints, the
underlying issue in the present application and the reason for the
applicant's alleged financial loss is the non-execution of the
domestic court judgments, which engages the responsibility of the
State under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
- The
Court notes that it has already examined similar cases on previous
occasions and has found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 in respect of non-enforced
court decisions (see, for instance, Burdov v. Russia,
no. 59498/00, §§ 34-42, ECHR 2002 III; Çoban
and Others v. Turkey, no. 2620/05, §§ 16-21, 24 January
2008; Akıncı v. Turkey, no.
12146/02, § 16-18, 8 April 2008; 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).
- The
Court notes in particular that the right secured under Article 6 § 1
of the Convention would be illusory if a Contracting State's domestic
legal system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party (see Hornsby v. Greece,
judgment of 19 March 1997, § 40, Reports 1997-II). The
Court also notes that by failing to comply with the judgments of the
domestic courts, the national authorities prevented the applicant
from receiving the money he was entitled to in its entirety. The
Government have not advanced any justification for this interference.
- In
the light of the foregoing, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention and 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 EUR 5,000 in respect of pecuniary damage and EUR
20,000 in respect of non-pecuniary damage.
- The
Government contested the applicant's claims.
- The
Court notes that it has found violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 by reason of the
non-execution of final judicial decisions. The Court considers in the
light of its case law that the payment by the Government of the
outstanding judgment debt would satisfy the applicant's claim for
pecuniary damage (see, among others, Basoukou v. Greece,
no. 3028/03, § 26, 21 April 2005; Ahmet Kılıç v.
Turkey, no. 38473/02, § 39, 25 July 2006; Akıncı,
cited above, § 21; Kaçar and
Others, cited above,
§ 30). The Court therefore considers that the
respondent Government should ensure that the Nizip Civil Court's
judgments of 22 and 25 December 2000 are duly executed by the
administration.
- The
Court further considers that the applicant 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 and making its
assessment on an equitable basis, the Court awards the
applicant EUR 800 as non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any costs and expenses. Accordingly, no award
is made 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
- 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 in
respect of the non-enforcement of the judgment;
- Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment
becomes final, the amount of the debt arising from the domestic
judgments still owed to him, as well as EUR 800 (eight hundred euros)
for non-pecuniary damage, plus any taxes that may be chargeable, to
be converted into the national currency of the respondent Government
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 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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
