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SECOND
SECTION
CASE OF ERBEY v. TURKEY
(Application
no. 29188/02)
JUDGMENT
(just
satisfaction)
STRASBOURG
26
October 2010
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 Erbey v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and
Stanley Naismith, Section
Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29188/02) 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 Cemil Erbey (“the
applicant”),
on 23 May 2002.
- In
a judgment delivered on 10 March 2009 (“the principal
judgment”), the Court held that the failure to award any
compensation to the applicant for the deprivation of his land had
amounted to a violation of Article 1 of Protocol No. 1 to the
Convention (see Erbey v. Turkey,
no. 29188/02, § 27, 10 March 2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
for the deprivation of his 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 applicant to submit, within six months of the date
of notification of the judgment, their written observations on that
issue and, in particular, to notify the Court of any agreement they
might reach (ibid., § 31, and point 4 of the
operative provisions).
- In
a letter dated 17 May 2009 the applicant submitted his observations
on the matter, which were transmitted to the Government. On
1 December 2009 the Government replied to that letter.
- In
the meantime, in a letter of 10 June 2009 the Government requested
the referral of the case to the Grand Chamber. This request was
rejected by the panel of five judges of the Grand Chamber on
14 September 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 applicant
- The
applicant did not submit a claim for non-pecuniary damage. However,
he claimed 6,500,000 euros (EUR) in respect of pecuniary damage
arising from the deprivation of his land, which was located in the
Menemen district of İzmir, and which had a total surface area of
36,560 square metres. In this connection, the applicant
submitted three different assessment reports in respect of the value
of the land, two of which were prepared by court-appointed experts
and the third by an independent group of experts.
(i) Declaratory judgment of the Menemen
Civil Court on the value of the land
- On
17 February 2009 the applicant's heirs brought an action seeking a
declaratory judgment (tespit davası) before Menemen Civil
Court with the aim of establishing the value of the land at issue in
May 2002, the date the present application was brought before the
Court.
- On
12 March 2009 three experts appointed by Menemen Civil Court, namely
a civil engineer, a cadastral expert and a real estate expert,
submitted their assessment report. They determined the value of the
land, which was qualified as a field (“tarla”) in
the land registry records, as 1,450,000 Turkish liras (TRY)
(equivalent to approximately EUR 1,150,000 at the material time)
in May 2002. In making this assessment they had regard to the fact
that the land was in a residential zone and was located near the town
centre, with easy access to transport and main roads, and that it
benefited from municipal services. It appears that they also took
into account the prices of comparable properties in the vicinity.
- On
16 March 2009 the applicant's heirs objected to the assessment report
and requested the court to appoint new experts. They argued that the
report was based only on experts' subjective evaluations and that it
did not sufficiently incorporate established data, such as real
estate prices in the area or the added value created by the land's
good location.
- On
17 March 2009 Menemen Civil Court rejected the applicant's heirs'
request. It held that the report provided a fair and objective
assessment of the land on the basis of scientific and other relevant
data.
- On
an unspecified date Menemen Civil Court requested an additional
report from the same experts, for reasons that cannot be ascertained
from the information in the case file.
- On
2 April 2009 the experts submitted their new report, where they
maintained their previous assessment regarding the value of the
relevant land.
(ii) Declaratory judgment of Karşıyaka
Civil Court on the value of the land
- On
23 March 2009 the applicant's heirs brought another action for a
declaratory judgment, this time before Karşıyaka Civil
Court, to determine the value of the disputed land in May 2002.
- On
13 May 2009 four experts appointed by Karşıyaka Civil
Court, namely two civil engineers, a cadastral expert and a real
estate expert, submitted their assessment report. They determined the
market value of the land as TRY 3,005,232 (equivalent to
approximately EUR 1,303,600) on 23 March 2009, the date
when the action was brought, having regard to its zoning status,
residential capacity, location, accessibility to public services and
the market prices of comparable properties.
- On
15 May 2009 the applicant's heirs objected to this assessment and
requested an additional report. It appears that this objection was
dismissed by Karşıyaka Civil Court.
(iii) Independent assessment of the value
of the land
- On
an unspecified date the applicant's heirs consulted a group of
independent experts made up of a civil engineer, an architect, a real
estate expert and a geodesic engineer for the purposes of valuing the
land in question.
- According
to the report submitted by the independent experts on 14 May
2009, the market value of the land was TRY 2,841,443 (equivalent to
approximately EUR 2,200,000) in May 2002. In their opinion, the
previous assessments carried out by court-appointed experts were
superficial and did not involve thorough and accurate research into
the market value of comparable properties.
(b) The Government
- The
Government submitted in the first place that the applicant should
have sought compensation through domestic remedies, relying on the
strict obligation on the administration to keep land registry records
under Article 1007 of the new Civil Code. The Government further
maintained that the amount of pecuniary damage requested by the
applicant's heirs was excessive and unsubstantiated and that an
objective assessment could only be carried out by authorised experts
appointed by domestic courts.
2. The Court's assessment
- As
the Court has held on a number of occasions, a judgment in which the
Court 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 (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 32, ECHR
2000-XI). The Contracting States that are parties to a case are in
principle free to choose the means by which 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
attached to the primary obligation of the Contracting States under
the Convention to secure the rights and freedoms guaranteed (Article
1). If the nature of the violation allows restitutio in integrum,
it is the duty of the State held liable to effect it, the Court
having neither the power nor in practice the ability to do so itself.
If, however, national law does not allow – or allows only
partial – reparation to be made for the consequences of a
breach, Article 41 empowers the Court to afford the injured party
such satisfaction as appears to it to be appropriate (see Brumărescu
v. Romania (just satisfaction) [GC], no. 28342/95, §
19, ECHR 2001 I).
- In
its principal judgment the Court held that in the absence of
compensation in exchange for the property, the interference in
question, although prescribed by law, had not struck a fair balance
between the demands of the general interest of the community and the
requirement to protect the individual's fundamental rights. In other
words, it was not the occupation of the applicant's land as such that
was at the origin of the breach found, but the cancellation of the
applicant's title pursuant to a law that was applied retrospectively
and which contained no provision for compensation (see I.R.S. and
Others v. Turkey (just satisfaction), no. 26338/95, §
23, 31 May 2005). In these circumstances, and having regard its
case-law (see I.R.S. and Others, cited above, §§ 23
and 24; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
246-259; Guiso Gallisay v. Italy
(just satisfaction) [GC], no. 58858/00,
§§ 102-107, 22 December 2009), the Court
considers that an award for pecuniary damage reflecting the value of
the property on the date on which the applicant lost ownership of the
land definitively, namely 17 September 2001, appears to be the most
appropriate just satisfaction for the applicant. The Court considers
that such an award principally corresponds to the amount that the
applicant could legitimately expect to have obtained as compensation
for the loss of his property, had there been a mechanism to request
such compensation.
- As
to the determination of the amount of this compensation, the Court
notes that the applicant submitted three different expert reports on
the value of the disputed land, two of them prepared by
court-appointed experts and the last one obtained from an independent
source. The Government, on the other hand, made no submissions,
merely stating that a fair assessment could only be made by
authorised court-appointed experts. The Court further notes that
there is considerable divergence between the values proposed by the
court appointed and the independent experts. Bearing in mind
that the former values were obtained through a judicial process,
albeit non-adversarial, the Court considers it appropriate to base
itself on the findings of the court-ordered expert reports, although
it does not consider itself bound by them (see Kozacıoğlu
v. Turkey [GC], no. 2334/03, § 85,
ECHR 2009 ...).
- Having
regard to these factors and ruling on an equitable basis by taking
into account various factors liable to reduce or to increase the
assessed value, the Court considers that it is reasonable to award
the applicant the sum of EUR 1,500,000 for pecuniary damage,
together with any tax that may be chargeable on this amount (see
Guiso-Gallisay, cited above, § 105).
- Moreover,
the Court cannot accept the Government's argument that the applicant
should have sought compensation through domestic remedies. The Court
notes that the very reason for the finding of a violation under
Article 1 of Protocol No. 1 in the principal judgment was the
unavailability of such a compensation mechanism under Article 38 of
the Expropriation Act (Law no. 2942 of 4 November 1983) at the
relevant time. The Court considers that it is far from clear whether
the remedy suggested by the Government, that is the seizing of
domestic courts on the basis of the strict obligation on the
administration to keep accurate land registry records under
Article 1007 of the new Civil Code, was capable of providing any
relief to the applicant in the circumstances of the present case. The
Government, for their part, have not submitted any evidence to the
contrary. Lastly, the Court considers in any event that it has
already declared the applicant to be the victim of a breach of
Protocol No. 1; requiring him to exhaust domestic remedies in order
to be able to obtain just satisfaction from the Court would prolong
the procedure instituted by the Convention in a manner scarcely in
keeping with the idea of effective protection of human rights (see
Papamichalopoulos and Others v. Greece (Article 50), 31
October 1995, § 40, Series A no. 330-B).
B. Costs and expenses
- The
applicant claimed TRY 1,381.94 (equivalent to approximately EUR 650)
for the costs and expenses incurred before the domestic courts,
including the fees for experts' reports, and lawyers' fees. He
submitted invoices in respect of these expenses.
- The
Government contested this amount.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the full amount claimed by the
applicant.
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 applicant's heirs, jointly, within
three months of 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 on
the date of settlement:
(i) EUR
1,500,000 (one million five hundred thousand euros), plus any tax
that may be chargeable, in respect of pecuniary damage;
(ii) EUR
650 (six hundred and fifty euros), plus any tax that may be
chargeable to the applicant's heirs, 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 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
