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SECOND
SECTION
CASE OF SAİT IŞIK v. TURKEY
(Application
no. 19255/02)
JUDGMENT
STRASBOURG
10 March 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 Sait Işık
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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19255/02) 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, Mr Sait Işık
(“the applicant”), on 17 January 2002. The applicant
was represented by Ms A. Aslan, a lawyer practising in Diyarbakır.
The Turkish Government (“the Government”) were
represented by their Agent. On 22 January 2008 the President of the
Second Section decided to give notice of the application to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1917 and lives in Eğil.
- On
3 April 1997 the Ministry of Energy and Natural Resources
expropriated 6 plots of land (plots nos. 546, 529, 503, 507, 527 and
523) belonging to the applicant in the Kale district of Eğil in
Diyarbakır. A committee of experts assessed the value of the
land and the sum fixed thereby was paid to the applicant on 19
November 1997.
- On
8 December 1997 the applicant lodged a case with the Eğil Civil
Court, requesting additional compensation. The first-instance court
decided to deal separately with parcel no. 523 due to the different
nature of that parcel.
1. Proceedings regarding parcel no. 523
- On
6 December 1999 the Eğil Civil Court awarded the applicant
additional compensation of 501,377,750 Turkish liras (TRL) plus
interest at a rate of 30% from 8 December 1997 to 1 January 1998, and
a rate of 50% from 1 January 1998 onwards.
- On
9 October 2000 the Court of Cassation upheld the decision of the
court of first instance.
- On
13 June 2001 the administration paid the applicant TRL 1,586,220,000
in additional compensation together with interest.
2. Proceedings regarding parcels nos. 546, 529, 503,
507 and 527
- On
17 May 2000 the Eğil Civil Court awarded the applicant
additional compensation of TRL 11,267,083,000 plus interest at the
statutory rate, running from 18 February 1998.
- On
12 February 2001 the Court of Cassation upheld the judgment of the
first-instance court.
- On
27 November 2001 the administration paid the applicant
TRL 35,240,270,000 in additional compensation together with
interest.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that he had been paid insufficient interest on
the additional compensation received following the expropriation of
his land, and that the authorities had delayed in paying him the
relevant amounts. He relied on Article 1 of Protocol No. 1.
- The
Government argued firstly that the applicant had failed to comply
with the six-month rule since he had waited until after the payments
had been made to apply to the Court instead of applying within six
months from the domestic court's decisions. However, he had been
aware of the interest rates at the time of delivery of the decisions.
The Government also maintained that the applicant had not exhausted
domestic remedies because he had failed to make proper use of the
remedy available to him under Article 105 of the Code of
Obligations.
- As
regards the Government's preliminary objection concerning
non-compliance with the six-month rule, the Court considers that the
six month period runs from the date of the last payments, since
the applicant's complaint essentially concerns the period which
elapsed between the final domestic court decision and that date. The
Court notes that the payment of additional compensation in relation
to parcel no. 523 was made on 13 June 2001. This aspect of
the complaint was therefore lodged out of time by 17 January
2002, and must be rejected pursuant Article 35 §§ 1 and 4
of the Convention.
- However,
the payment in relation to parcels nos. 546, 529, 503, 507 and 527
was made on 27 November 2001. Consequently, the Court finds that the
applicant has complied with Article 35 § 1 of the Convention
with regard to these plots and, therefore, rejects the Government's
objection in relation to this part of the complaint.
- As
to the Government's preliminary objection concerning non-exhaustion
of domestic remedies, the Court observes that it dismissed a similar
argument 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
application is, therefore, admissible as far as it concerns parcels
nos. 546, 529, 503, 507 and 527.
-
As regards the merits of the case, the Court reiterates that it has
already found a violation of Article 1 of Protocol No. 1 in a number
of applications that raise similar issues to those arising here (see,
for example, Akkuş v. Turkey, 9 July 1997, § 31,
Reports 1997 IV; Pamuk v. Turkey, no. 131/02,
§§ 16-18, 19 December 2006; Halil Kendirci v. Turkey,
no. 23324/02, §§ 16-18, 25 April 2006). 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 those previous cases.
- There
has accordingly been a violation of Article 1 of Protocol No. 1
in relation to parcels nos. 546, 529, 503, 507 and 527.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 8,824 United States Dollars (USD) (approximately
6,100 euros (EUR)) in respect of pecuniary damage.
- The
Government contested this claim.
- Using
the same method of calculation as in the Akkuş judgment
(cited above, §§ 55-56) and having regard to the relevant
economic data, the Court awards the applicant EUR 3,000 in respect of
pecuniary damage.
- The
applicant also claimed EUR 4,000 for the costs and expenses incurred
before the Court. He submitted a document, dated 3 January 2002,
certifying that he had paid TRL 1,000,000 (approximately EUR 780) to
his representative in relation to the application before the Court.
- The
Government contested this claim.
- 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 documentation in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 780 for the
proceedings before the Court.
- 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 in relation
to the property issue concerning parcels nos. 546, 529, 503, 507
and 527, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- 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 the national currency of the respondent Government
at the rate applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
780 (seven hundred and eighty euros) plus any tax that may be
chargeable to the applicant, 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 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 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
