THIRD SECTION
FINAL DECISION
Application no. 42787/98
by Zeki BİRGÜL and Others
against Turkey
The European Court of Human Rights (Third Section), sitting on 22 January 2004 as a Chamber composed of:
MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrB. Zupančič,
MrsM. Tsatsa-Nikolovska, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 8 July 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the partial decision of 23 November 1999,
Having regard to the formal declarations accepting a friendly settlement of the case submitted by the applicants and the Government on 9 September 2002 and 11 November 2003 respectively,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Raşit Birgül, Mr Zeki Birgül, Mr Arif Birgül, Mr Mehmet Birgül and Mr Halil Birgül, are Turkish nationals. They are represented before the Court by Mr A. Akıllıoğlu, Mr M. Nerse and Mr A. Aktay, lawyers practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Tarsus in order to build the Tarsus-İçel-Çukurova-İskenderun Motorway. A committee of experts assessed the value of the plots of land belonging to the applicants and these amounts were paid to them when the expropriation took place.
Following the applicants’ requests for increased compensation, the national courts awarded them additional compensation plus an interest at the statutory rate of 30 % per annum. The applicants appealed and the Court of Cassation upheld the decision of the first instance court. In January 1998 the due amounts were paid to the applicants.
Details are indicated in the table below:
NAMES OF THE APPLICANTS
DATE OF TRANSFER OF TITLE DEED TO THE LAND
DATE OF FINAL DECISION BY COURT OF CASSATION AS REGARDS ADDITIONAL COMPENSATION
AMOUNT OF ADDITIONAL COMPENSATION
(interests and legal costs are not included)
(in turkish liras)
DATE OF PAYMENT
1. Raşit BİRGÜL
26.08.1991
19.06.1995
4,090,361,854
09.01.1998
2. Arif BİRGÜL
26.08.1991
19.06.1995
4,090,361,854
12.01.1998
3. Mehmet BİRGÜL
26.08.1991
19.06.1995
4,090,361,854
12.01.1998
4. Halil BİRGÜL
26.08.1991
19.06.1995
4,090,361,854
09.01.1998
5. Zeki BİRGÜL
26.08.1991
19.06.1995
4,090,361,854
12.01.1998
COMPLAINTS
The applicants allege that the rate of interest applied in the calculation of the additional compensation for expropriation was too low. They further complain of the delays in obtaining their compensation. They rely on Article 1 of Protocol No. 1 and Article 6 of the Convention.
THE LAW
Following informal contacts between the applicants’ and the Government’s representatives, the Section Registrar was asked to assist the parties in reaching a solution to the matter. As a result, the Registrar addressed draft declarations to the parties.
The Court received the following declarations from the Government:
“Declaration (1)
I declare that the Government of Turkey offer to pay 287,500 (two hundred and eighty-seven thousand five hundred) euros to Mr Zeki Birgül, Mr Arif Birgül, Mr Mehmet Birgül, Mr Halil Birgül and Mr Raşit Birgül with a view to securing a friendly settlement of the application registered under no. 42787/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs and will be divided up as follows:
Mr Zeki Birgül57,500 EUR
Mr Arif Birgül57,500 EUR
Mr Mehmet Birgül57,500 EUR
Mr Halil Birgül57,500 EUR
Mr Raşit Birgül57,500 EUR
143,750 (one hundred and forty-three thousand seven hundred and fifty) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to Article 37 § 1 a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.
The Government further agree to pay the remaining 143,750 (one hundred and forty-three thousand seven hundred and fifty) euros within six months following the decision by the Court pursuant to Article 37 § 1 a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.
Ankara, 11 November 2003”
“Declaration (2)
I declare that the Government of Turkey offer to pay 287,500 (two hundred and eighty-seven thousand five hundred) euros to Mr Zeki Birgül, Mr Arif Birgül, Mr Mehmet Birgül, Mr Halil Birgül and Mr Raşit Birgül with a view to securing a friendly settlement of the application registered under no. 42787/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs and will be divided up as follows:
Mr Zeki Birgül57,500 EUR
Mr Arif Birgül57,500 EUR
Mr Mehmet Birgül57,500 EUR
Mr Halil Birgül57,500 EUR
Mr Raşit Birgül57,500 EUR
143,750 (one hundred and forty-three thousand seven hundred and fifty) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to Article 37 § 1 a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.
The Government further agree to pay the remaining 143,750 (one hundred and forty-three thousand seven hundred and fifty) euros within six months following the decision by the Court pursuant to Article 37 § 1 a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.
Ankara, 11 November 2003”
The Court received the following declaration signed by one of the representatives of the applicants:
“I note that the Government of Turkey are prepared to pay the sum of 575,000 (five hundred and seventy-five thousand) euros covering pecuniary and non-pecuniary damage and costs to Mr Zeki Birgül, Mr Arif Birgül, Mr Mehmet Birgül, Mr Halil Birgül and Mr Raşit Birgül with a view to securing a friendly settlement of application no. 42787/98 pending before the Court. This sum will be divided up as follows:
Mr Zeki Birgül115,000 EUR
Mr Arif Birgül115,000 EUR
Mr Mehmet Birgül115,000 EUR
Mr Halil Birgül115,000 EUR
Mr Raşit Birgül115,000 EUR
I also note that 287,500 (two hundred and eighty-seven thousand five hundred) euros of this sum will be payable within three months from the date of the decision by the Court pursuant to Article 37 § 1 a) and c) of the European Convention on Human Rights and the remaining 287,500 (two hundred and eighty-seven thousand five hundred) euros within six months following this decision.
This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.
I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final settlement of the case.
This declaration is made in the context of a friendly settlement which the Government and the applicants have reached.
Mersin, 9 September 2002”
The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols and considers that there is no reason which would justify the continuation of the examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of the Court).
For these reasons, the Court unanimously
Decides to disjoin the application from other applications;
Decides to strike the application out of its list of cases.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy