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SECOND
SECTION
CASE OF TAŞATAN v. TURKEY
(Application
no. 60580/00)
JUDGMENT
STRASBOURG
10 May
2007
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 Taşatan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60580/00) 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 Cevdet Taşatan
(“the applicant”), on 2 June 2000.
- The
applicant was represented by Mr N. Cem, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- On
14 March 2005 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Istanbul.
- On
3 August 1983 the General Directorate of National Roads and Highways
expropriated a plot of land belonging to the applicant. A
committee of experts assessed the value of the expropriated land and
this amount was paid to him when the expropriation took place.
- Following
the applicant's request for increased compensation, on 5 November
1993 the Küçükçekmece Civil Court of First
Instance awarded him additional compensation plus interest at the
statutory rate running from the date of the expropriation.
- On
5 November 1993 the Court of Cassation quashed the judgment of the
first-instance court in respect of the commencement date for the
calculation of the interest.
- On
21 July 1994 Küçükçekmece Civil Court of
First Instance confirmed its previous judgment.
- On
10 October 1994 the Court of Cassation upheld the aforementioned
judgment.
- In
the meantime, the applicant initiated execution proceedings
(icra takibi) against the General Directorate of Highways
via the Istanbul Bailiff's Office in order to enforce the payment of
the compensation awarded by the first instance court.
- On
6 January 1998 the applicant was paid 6,846,778,000 Turkish liras
(TRL).
- On
19 July 1999 the applicant filed an action with the Ankara Civil
Court of First Instance and requested compensation for the loss
sustained as a result of late payment and inflation, pursuant to
Article 105 of the Code of Obligations.
- On
28 December 1999 the Ankara Civil Court of First Instance dismissed
the applicant's request. On 12 May 2000 the Court of Cassation upheld
the aforementioned judgment.
- According
to the letter dated 5 April 2004 from the Istanbul Bailiff's Office,
the General Directorate of Highways still owed TRL 625,000,000
(EUR 384) to the applicant.
- Referring
to the General Directorate of Highways' letter dated 27 July
2005, the Government claimed that they had paid the total amount due
and that the Bailiff's office had struck out the case concerning the
enforcement proceedings.
- However,
in a letter dated 14 October 2005, the Bailiff's office stated that
the General Directorate of Highways still owed 652 New Turkish liras
to the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the additional compensation determined by
the national court was too low. He also maintained
that the authorities had delayed in paying him the
compensation for expropriation and that, at a time
when the annual rate of inflation in Turkey had been very high, he
had been paid insufficient interest. The applicant further
alleged that he still had not been paid the
totality of the sum owed by the national authorities. He
invoked Article 1 of Protocol No. 1 to the Convention, which reads
insofar as relevant as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.”
A. Admissibility
- The Government asked the Court to dismiss these
complaints for failure to comply with the six months' rule under
Article 35 § 1 of the Convention. They submitted that the
applicant should have lodged his application within six months from
the date of the payment of full additional compensation, which was 6
January 1998, whereas the application was lodged on 2 June 2000. They
further claimed that the applicant had received the full amount of
compensation which covered the additional compensation and the
interest awarded by the domestic courts.
- The
applicant asked the Court to dismiss the Government's objection as
the national authorities had still not paid the total amount of
compensation.
- The
Court observes that the applicant's complaint under Article 1 of
Protocol No. 1 is twofold. Firstly, he complains that the amount of
additional compensation awarded by the domestic courts was too low.
- The
Court notes that the proceedings relating to the additional
compensation were rendered final by the Court of Cassation's decision
of 10 October 1994, whereas the applicant introduced this
complaint on 2 June 2000, i.e. more than six months later.
- It
follows that the applicant's complaint pertaining to insufficient
additional compensation has been introduced outside the six-month
time limit prescribed by Article 35 § 1 and must be
rejected pursuant to Article 35 § 4 of the Convention.
- The
second limb of the complaint concerns the authorities' failure to pay
the total amount of compensation and the damage sustained by the
applicant as a result of late payment. It appears from the Bailiff's
letter of 14 October 2005 that the national authorities have not paid
the total amount of compensation and that they still owe 652 New
Turkish liras to the applicant (see paragraph 17 above). In view of
the national authorities' continuing failure to pay the full amount
of compensation to the applicant, the Court considers that the six
months' rule is not applicable. Accordingly, this part of the
Government's objection must be dismissed.
- Having
regard to the foregoing, the Court finds that, in the light of the
principles it has established in its case-law (see, among other
authorities, Akkuş, cited above) and of all the evidence
before it, this complaint requires an examination on the merits and
there are no grounds for declaring it inadmissible.
B. Merits
- The Court has found a violation of Article 1 of
Protocol No. 1 in a number of cases that raise similar issues to
those in the present application (see Akkuş, cited above,
p. 1317, § 31).
- Having
examined the facts and arguments presented by the Government and the
applicant, the Court considers that there is nothing to warrant a
departure from its earlier findings. It concludes that, as a result
of the national authorities' continuing failure to pay the total
amount of compensation, the low interest rates and the length of the
proceedings as a whole, the applicant has had to bear an individual
and excessive burden which has upset the fair balance that must be
maintained between the demands of the general interest and the
protection of the right to the peaceful enjoyment of possessions.
- Consequently,
there has been a violation of 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 4,000,000 United States dollars (USD),
(approximately EUR 3,026,000) in respect of pecuniary damage and
USD 100,000 (approximately EUR 75,673) for non-pecuniary damage.
- The
Government contested these claims.
- Using
the same method of calculation as in the Akkuş judgment
(cited above, p. 1311, §§ 35-36 and 39) and having
regard to the relevant economic data, the Court awards the applicant
EUR 4,330 for pecuniary damage.
- The
Court considers that the finding of a violation of Article 1 of
Protocol No. 1 constitutes in itself sufficient just satisfaction for
any non pecuniary damage suffered by the applicant.
B. Costs and expenses
- The
applicant asked the Court to make an award for the costs and expenses
incurred before the Court. However, he did not specify an amount and
left it to the discretion of the Court
- The
Government submitted that no award should be made under this heading.
- Making
its own estimate based on the information available, the
Court considers it reasonable to award the applicant the sum of EUR
1,000 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 complaint concerning the
authorities' continuing failure to pay the total amount of
compensation and the damage sustained by the applicant as a result of
late payment admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
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 New Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
4,330 (four thousand three hundred and thirty euros) in respect of
pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs
and expenses;
(iii) any taxes that may be chargeable on the above amounts;
(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 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B. Baka
Registrar President
