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SECOND
SECTION
CASE OF KARAKUŞ v. TURKEY
(Application
no. 19467/07)
JUDGMENT
STRASBOURG
14 April 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 Karakuş 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,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 24 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19467/07) 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 Kazım Karakuş
(“the applicant”), on 25 April 2007. The applicant was
represented by Mr Z. Kadayıfçı, a lawyer
practising in Hatay. The Turkish Government (“the Government”)
were represented by their Agent. On 30 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
applicant owned two adjacent plots of land (157 square meters of plot
no. 1640 and 132 square meters of plot no. 1641) situated near the
coast-line in Tekirdağ on which he built two semi-detached
houses. On 20 May 2005 the Tekirdağ
Court of First Instance delivered two separate judgments and annulled
83,36 square meters and 71,02 square meters of the respective plots
on the ground that they were situated on the coastline which could
not be subject to private ownership. The court further ordered the
demolition of any constructions thereon. The Court of
Cassation upheld the judgments on 5 May 2006 and 24 May 2006
respectively. The applicant's requests for rectification were
rejected on 13 November 2006.
THE LAW
- The
applicant complained that the authorities had deprived him of his
property without payment of compensation and that the Court of
Cassation had failed to deliver reasoned judgments, in breach of
Article 1 of Protocol No. 1 and Article 6 § 1 of the
Convention respectively. The Government contested these allegations.
- The
Court notes that it has already declared admissible similar
complaints under Article 1 of Protocol No. 1 (see, in particular,
Abacı v. Turkey, no. 33431/02, §§ 11-18, 7
October 2008, and Turgut and Others v. Turkey, no.
1411/03, § 80, 8 July 2008) and has found violations in respect
of the annulment of title acquired in good faith but later restored
to State ownership without compensation being paid (see N.A.
and Others v. Turkey, no. 37451/97, §§ 36 43,
ECHR 2005 X). It further notes the absence of sample domestic
judgments where compensation has been awarded in similar situations.
Accordingly the Court holds that the complaint under Article 1 of
Protocol No. 1 is admissible, there being no grounds upon which to
decide otherwise. The Court further finds no reason to depart from
the conclusions on the merits of the cases cited above. Accordingly,
it concludes that there has been a violation of Article 1 of Protocol
No. 1.
- Regarding the applicant's complaints under Article 6 §
1 of the Convention, the Court observes that the judgments of the
Tekirdağ Court of First Instance were fully reasoned. In the
Court's opinion, the succinct reasoning given by the Court of
Cassation was sufficient in the circumstances to comply with the
requirements of Article 6 § 1 of the Convention (Helle v.
Finland, 19 December 1997, § 56, Reports of Judgments and
Decisions 1997 VIII). It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
- As
to the award under Article 41 of the Convention, the applicant
claimed 427,328 Turkish liras (TRY) (approximately 210,506 euros
(EUR)) in respect of pecuniary damage and 60,000 US dollars (USD) in
respect of non-pecuniary damage. He also claimed TRY 5,306
(approximately EUR 2,613) in respect of the costs and expenses
incurred before the domestic courts as well as the lawyer's fee for
the procedure before the Court. In this respect he referred to an
expert report, a number of receipts issued by domestic courts and a
lawyer's contract. The Government contested these claims.
- The Court reiterates that when the basis of the
violation found is the lack of compensation, rather than any inherent
illegality in the taking of the property, the compensation need not
necessarily reflect the property's full value (see I.R.S and
Others v. Turkey (just satisfaction), no. 26338/95,
§§ 23-24, 31 May 2005). It therefore deems it
appropriate to fix a lump sum (see, for example, Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 254-259, ECHR
2006-..., Stornaiuolo v. Italy, no. 52980/99, §§
82-91, 8 August 2006, and Doğrusöz and Aslan v.
Turkey, no. 1262/02, § 38, 30 May 2006, § 36).
Deciding on an equitable basis, it awards the applicant EUR 120,000
for pecuniary damage. As regards the applicant's claim 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 Doğrusöz and Aslan, cited
above, and Adil Özdemir v. Turkey, no. 36531/02, §
42, 10 May 2007). Additionally, on the basis of the documents in
its possession, the Court awards the applicant EUR 2,000 in respect
of costs and expenses. The Court further 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 complaint under Article 1 of
Protocol No. 1 admissible 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 that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained 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 Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
120,000 (one hundred and twenty thousand euros), plus any tax that
may be chargeable, in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
