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SECOND
SECTION
CASE OF KURT AND FIRAT v. TURKEY
(Application
no. 26828/03)
JUDGMENT
STRASBOURG
21
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 Kurt and Fırat
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 Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26828/03) 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, Ms Fatma Kurt and
Ms Zeynep Fırat (“the applicants”), on 28 April
2003.
- The
applicants were 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 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
applicants were born in 1921 and 1926 respectively and live in
Gaziantep.
- In
1999 the Ministry of Energy and Natural Resources expropriated a plot
of land belonging to the applicants (plot no. 746) in the Aşağıçardak
village, in Nizip, in order to build the Birecik dam.
- On
9 February 1999 the applicants brought an action before the
Nizip Civil Court for additional compensation.
- On
30 December 1999 the Nizip Civil Court of First Instance awarded the
applicants additional compensation of 15,748,251,500 Turkish liras
(TRL)
plus interest at the statutory rate, running from 28 February 1999.
- On
26 June 2000 the Court of Cassation upheld the judgment of the
first-instance court.
- On
3 December 2002 and 23 May 2007 the administration paid the
applicants TRL 47,876,259,385
and 24,628.81 Turkish liras (TRY)
respectively in additional compensation, together with interest.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that the delay in the payment of the additional
compensation they were awarded following the expropriation of their
property, coupled with the low interest rates, had caused them to
suffer a financial loss. They relied on Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The Government submitted that the applicants had not
exhausted domestic remedies as they had failed to make proper use of
the remedy available to them under Article 105 of the Code of
Obligations. The Government added that the applicants had failed to
respect the six-month rule, having lodged their application on 28
April 2003 whereas the Court of Cassation had delivered its judgment
on 26 June 2000.
- The Court observes that it dismissed similar
preliminary objections in the case of Akkuş v Turkey (9
July 1997, §§ 20-23, Reports of Judgments and Decisions
1997-IV). It sees no reason to do otherwise in the present case
and therefore rejects the Government's objections.
- 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.
- As
regards the merits of the case, 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 (see, for instance, Burdov v. Russia, no. 59498/00, §§
34-42, ECHR 2002-III; 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
considers that there is nothing to warrant a departure from its
findings in the previous cases. It notes that the authorities
effected the first payment two years and five months after the Court
of Cassation's decision and that the second payment was made almost
seven years after the said decision. Consequently, the Court finds
that the delay in the payment of the additional compensation awarded
by the domestic courts was attributable to the expropriating
authority and caused the owners to sustain 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 (see M. Kaplan v. Turkey,
no. 29016/04, §§ 16-19, 9 December 2008).
- 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
- The
applicants claimed EUR 17,000 in respect of pecuniary damage and EUR
50,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- In
respect of the applicants' complaint under Article 1 of Protocol No.
1, the Court estimates – using the same method of calculation
as in the Akkuş judgment (cited above, §§ 35,
36 and 39) and having regard to the relevant economic data at the
material time – that the applicants' loss after the two
payments is EUR 1,100. The Court considers, in the light of its
case-law, that the payment by the Government to the applicants,
jointly, of the outstanding judgment debt would satisfy their claim
for pecuniary damage (see, among other authorities, Basoukou v.
Greece, no. 3028/03, § 26, 21 April 2005; Ahmet Kılıç
v. Turkey, no. 38473/02, § 39, 25 July 2006; Akıncı
v. Turkey, no. 12146/02, § 21, 8 April 2008; Kaçar
and Others, cited above).
- The
Court accepts that the applicants 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 applicants EUR 3,000 each.
- The
applicants also claimed EUR 6,700 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- However,
the Court makes no award under this head as the applicants have
failed to substantiate it.
- 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 of the Convention and Article 1 of Protocol No. 1 in respect of the
late enforcement of the domestic judgment;
- Holds
(a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following sums, to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) to the applicants jointly, EUR 1,100 (one thousand
one hundred euros), plus any tax that may be chargeable, in respect
of pecuniary damage,
(ii) to each applicant, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount 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 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
