CASE OF ALP v. TURKEY

SECOND SECTION

CASE OF ALP v. TURKEY

(Applications nos. 8469/12 and 14040/12)

JUDGMENT
 

STRASBOURG

7 July 2020

This judgment is final but it may be subject to editorial revision.

In the case of Alp v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Egidijus Kūris, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 16 June 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the alleged violation of the applicants’ right of access to a court on account of a procedural restriction preventing them from amending their claims in the course of administrative proceedings and the depreciation of the amount awarded by the domestic courts at the end of those proceedings due to inflation.

THE FACTS

1.  The applicants were born in 1993, 1995 and 1952 respectively and live in Ankara.

2.  The facts of the case, as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows.

3.  On 8 January 1997 F.A., the first and second applicants’ mother and the third applicant’s wife, died as a result of a passenger train colliding with her car in Sincan (Ankara).

4.  On 28 May 1997 the applicants, while reserving their right to increase the amount of their claims in due course, brought compensation proceedings against the General Directorate of State Railways (“TCDD”) and the Municipality of Sincan (“the Municipality”) before the Sincan Civil Court of General Jurisdiction (“the Civil Court”).

5.  During the course of the proceedings, the Civil Court decided to order an expert report to determine the damage sustained by the applicants and the degree of fault attributable to the Municipality in the accident.

6.  On an unspecified date the expert submitted his findings and his assessment of the pecuniary damage suffered by the applicants to the Civil Court. According to the expert, the degree of fault attributable to the Municipality and the TCDD in the accident had been 25%.

7.  On 29 April 1999 the applicants brought an additional action (ek dava) before the Civil Court to increase the amount of their initial claims in the light of the expert report.

8.  On 15 June 1999 the Civil Court joined those cases and rejected them on the ground of lack of jurisdiction, holding that the administrative courts were competent to examine the case.

9.  Subsequently, on 15 September 1999 the applicants, while reserving their right to increase the amount of their claims in due course, lodged their compensation claim with the Ankara Administrative Court, claiming a total of 1,151,250,000 Turkish liras (TRL) in respect of pecuniary damage (including the cost of damage to the vehicle) and TRL 850,000,000 in respect of non-pecuniary damage, with interest to run from the date of the incident, that is, 8 January 1997 (see paragraph 3 above).

10.  During the course of the proceedings, the court decided to order an expert report to determine the exact amount of pecuniary damage suffered by the applicants. The report, which was submitted to the court on 17 July 2007, assessed the pecuniary damage sustained by the applicants at 37,755.55 new Turkish liras (TRY[1]). According to a separate expert report, the cost of the damage to the vehicle was TRY 265. The applicants did not submit a request to the court to increase the amount of their initial claims in the light of that report.

11.  In its decision of 27 February 2008, the Ankara Administrative Court awarded the applicants the amounts initially claimed by them, namely TRY 1,115 in respect of pecuniary damage, TRY 31.25 for the cost of the damage to the vehicle and TRY 850 in respect of non-pecuniary damage (equivalent, in total, to approximately 1,131 euros (EUR) at the time). The court also ruled that default statutory interest was to be applied to those amounts from the date on which the applicants had brought compensation proceedings before the Civil Court, that is, 28 May 1997 (see paragraph 4 above).

12.  The applicants appealed against the judgment of the Administrative Court. They submitted, inter alia, that they had not been able to amend their initial claims in the light of the calculations in the expert report ordered by the court in the course of the proceedings, as the applicable law did not allow them to do so. The Supreme Administrative Court dismissed the appeal and upheld the first-instance judgment as being in conformity with the applicable law and procedure.

13.  On 22 June 2011 the judgment of the first-instance court became final. So far, no payment has been made to the applicants in respect of the amounts awarded by the Administrative Court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

14.  At the time of the events, Turkish administrative law did not allow claimants to amend their initial claims during the course of proceedings before the administrative courts (see, in particular, Okçu v. Turkey, no. 39515/03, §§ 27-32, 21 July 2009).

15.  Since 30 April 2013, as a result of an amendment to the Code of Administrative Procedure, parties to full remedy actions have been able to revise their initial claims, provided that the related costs are paid.

16.  The Compensation Commission was set up by Law no. 6384 in order to provide for the settlement, by means of compensation, of applications lodged with the Court concerning the length of judicial proceedings and non-enforcement or delayed enforcement of judicial decisions. A full description of the relevant domestic law can be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

17.  The Compensation Commission’s competence was recently extended by Presidential Decree no. 809 of 7 March 2019, published in the Official Gazette on 8 March 2019. Accordingly, the Compensation Commission is now competent to examine and grant compensation to applicants in cases where the Court has found a violation of Article 1 of Protocol No. 1 without giving a decision on compensation or in cases where it has reserved the question under Article 41 of the Convention (see Kaynar and Others v. Turkey, nos. 21104/06 and 2 others, § 24, 7 May 2019).

18.  Under section 28(2) of Law no. 2577 on administrative procedure, payment of specific amounts awarded in decisions and judgments is made by the respondent administrative authority to the bank account number provided by the claimant or his or her representative.

THE LAWJOINDER OF THE APPLICATIONS

19.  The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.PRELIMINARY ISSUE

20.  The Government argued that Oruç Yasin Alp, who had reached the age of majority when notice of the application was given to them – that is, on 19 October 2017 – had failed to present an authority form for his legal representation.

21.  The Court notes that on 1 June 2017 Oruç Yasin Alp submitted to the Court a letter of authorisation designating a lawyer to represent him in the proceedings before the Court. The Government’s argument on this point should therefore be dismissed.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22.  The applicants complained that they had been prevented from amending their initial claims during the course of the administrative proceedings in their case. The Court considers that the complaint concerns the applicants’ right of access to a court as guaranteed by Article 6 § 1 of the Convention, the relevant parts of which provide as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Submissions by the parties

23.  The applicants maintained their initial arguments.

24.  The Government submitted that, during the proceedings before the Civil Court, the applicants had been able to revise their initial claims in respect of pecuniary damage by bringing an additional action. They maintained that when the Ankara Administrative Court delivered its judgment, it had taken into consideration those amended claims. The Government further submitted that the legislation in question, which had prevented claimants from modifying their initial claims before the administrative courts, had been amended on 30 April 2013 (see paragraph 15 above).Admissibility

25.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

26.  The Court notes that during the civil proceedings, the applicants were able to amend the amount of their initial claims in line with the expert report ordered by the Civil Court (see paragraph 7 above). The Court further notes that, before the Ankara Administrative Court, the applicants claimed the amounts determined by the experts during the civil proceedings. Nevertheless, during the administrative proceedings a fresh expert report was submitted to the Ankara Administrative Court according to which the pecuniary damage sustained by the applicants was greater than that determined by the experts during the civil proceedings. The Court notes in that connection that the applicants’ main grievance under Article 6 § 1 of the Convention was their inability to claim the additional amount in respect of pecuniary damage as indicated in the expert report submitted during the administrative proceedings. Therefore, the Government’s argument that the applicants could have amended their claims during the civil proceedings is not relevant.

27.  As to the amendments to the relevant domestic law, the Court observes that the previous legislation and practice were applicable to the applicants’ case. The amendments do not therefore affect the applicants’ situation.

28.  The Court observes that the only reason why the applicants were unable to increase the amount of their initial claim in the light of the expert report was the statutory obstacle in administrative court procedure. In Fatma Nur Erten and Adnan Erten v. Turkey (no. 14674/11, §§ 29-33, 25 November 2014), the Court found a violation of Article 6 § 1 of the Convention in respect of a similar set of circumstances relating to the same procedural restriction in the Law on the Supreme Military Administrative Court. Having noted that the only reason why claimants could not modify their claims was the strict application of the procedural rule, the Court took the view that it would be unreasonable to expect the applicant to have known at the time of lodging his case with the military administrative court the exact extent of the pecuniary damage he had sustained, or to require him to overestimate his claim deliberately and lodge a claim for a higher amount by paying higher court fees, which would result in a disproportionate limitation on the right of access to a court (see, for a similar conclusion regarding the similar restriction in administrative court procedure, Mikail Tüzün v. Turkey, no. 42507/06, §§ 22-24, 27 November 2018).

29.  The Court finds that the same considerations are applicable to the instant case and sees no reason to come to a different conclusion. There has accordingly been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL No. 1

30.  The applicants complained that the compensation they had been awarded by the Administrative Court at the end of the proceedings had depreciated in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. They relied on Article 1 of Protocol No. 1, which reads 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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”Submissions by the parties

31.  The Government submitted that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as they had failed to lodge a separate action by using the remedy available to them under Article 105 of the former Code of Obligations (Law no. 818) and Article 122 of the current Code of Obligations (Law no. 6098). Under those Articles, which contain similar provisions, they would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the compensation if they had established that the losses exceeded the amount of default interest.

32.  The applicants maintained their initial arguments in respect of the admissibility and merits of their complaint.Admissibility

33.  As regards the Government’s objection concerning the non‑exhaustion of domestic remedies, namely the possibility of bringing an additional action for further damages under Article 105 of Law no. 818 and Article 122 of Law no. 6098, the Court observes that it dismissed a similar objection in Okçu (cited above, § 67), Gezer v. Turkey (no. 18704/04, § 36, 6 October 2009) and, more recently, Timurlenk v. Turkey (no. 37758/08, § 28, 28 January 2020). It sees no reason to do otherwise in the present case and therefore dismisses the Government’s objection.

34.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

35.  The applicants complained about the depreciation of the amount awarded to them due to inflation. The Government contested the applicants’ arguments. They contended that the authorities had been deprived of the opportunity to enforce the judgment owing to the applicants’ behaviour, since they had failed to provide their bank account numbers to the Municipality, which was a requirement under domestic law (see paragraph 18 above).

36.  As to the Government’s argument that the authorities had been deprived of the opportunity to enforce the judgment owing to the applicants’ behaviour, namely not providing bank account numbers to the Municipality, the Court reiterates, firstly, that where a judgment is against the State, the defendant State authority is duly notified thereof and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for compliance. Where the applicant’s cooperation is required, it must not go beyond what is strictly necessary and in any case does not relieve the authorities of their obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Krasnov v. Russia, no. 18892/04, § 25, 22 November 2011). The Court further notes that the applicants did not complain about the non-enforcement of a judicial decision but the depreciation of the compensation awarded due to the very high rate of inflation in Turkey.

37.  The Court observes that in the instant case the authorities took no initiative to execute the judgment of the Ankara Administrative Court but remained inactive for almost nine years, without seeking the applicants’ cooperation. The Court notes that the applicants failed to provide their bank account numbers to the relevant administration. However, in its view, this failure cannot be considered to amount to a refusal to cooperate, especially taking into account the fact that the authorities made no effort to obtain the applicants’ bank account numbers.

38.  The Court reiterates that it has found a violation of Article 1 of Protocol No. 1 in a number of applications in which the applicants complained about the insufficiency of the statutory interest rates in relation to the high inflation rates at a given time in Turkey (see Aka v. Turkey, 23 September 1998, § 48, Reports of Judgments and Decisions 1998-VI, and Okçu, cited above, § 55). Having regard to the economic data for the period between the years 1997 and 2011, in particular the fact that the statutory interest rates applied between the years 1997 and 1999 were 30%, 50% and 60% respectively, whereas the actual inflation rate varied between 60% and 99%, the Court finds in the present case that the difference between the statutory interest rates applied to the amount of compensation and the actual inflation rate must have caused the applicants to sustain financial loss. Consequently, the applicants had to bear an individual burden that has upset the fair balance which must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.

39.  In view of the above, there has been a breach of Article 1 of Protocol No. 1.APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”

41.  The applicants claimed amounts in respect of the pecuniary and non‑pecuniary damage they had allegedly incurred as a result of the proceedings before the domestic courts. In this respect, Selime Alp claimed 40,000 euros (EUR) in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage. The applicants Oruç Yasin Alp and Yavuz Alp claimed jointly EUR 40,000 in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage. The applicants did not claim any amount in respect of costs and expenses.

42.  The Government contested the amounts claimed, considering them to be excessive. They did not, however, provide a method for calculating the inflation adjustment in relation to the pecuniary damage alleged by the applicants.

43.  The Court notes that the Compensation Commission is now competent to examine just satisfaction claims in cases where the Court has found a violation of Article of Protocol No. 1 but has not ruled on the applicants’ claims for just satisfaction under Article 41 of the Convention or has decided to reserve the question (see paragraph 17 above). The relevant criteria according to which the Court decides to determine the question of just satisfaction itself rather than striking out that part of the application by referring it to the Compensation Commission can be found in Kaynar and Others (cited above, §§ 76-78) and Timurlenk (cited above, §§ 34-36).

44.  Applying those criteria, the Court considers that in the present case the determination of the question of just satisfaction does not pose any particular difficulty. On that account, the depreciation in value of the amount awarded to the applicants by the domestic courts can be calculated using an objective and simple method which has been used by the Court in similar cases (see Timurlenk, cited above, § 37). Moreover, the Court emphasises that the present applications were lodged in January 2012 and that it has found a violation of Article 1 of Protocol No. 1 on account of the loss incurred by the applicants because of long-term inflation not compensated for by the statutory interest rate, effectively reducing the real value of the compensation awarded to them by the domestic courts. Bearing in mind the above considerations, the Court therefore does not see any advantage in prolonging the determination of the question of just satisfaction in the case at hand, which conclusion in no way calls into question the effectiveness of the Compensation Commission. The Court will therefore continue to examine this part of the application.

45.  The Court notes that on 27 February 2008 the Ankara Administrative Court awarded the applicants a total of TRY 1,996.25 in respect of pecuniary and non-pecuniary damage as a result of the loss of their relative in a car accident, plus statutory interest to be applied from the date on which the applicants had brought compensation proceedings before the Civil Court, that is, 28 May 1997 (see paragraph 4 above). The Court further notes that the amount awarded has not been paid to the applicants thus far (see paragraph 12 above).

46.  Having regard to the foregoing, the Court finds it appropriate to take into account the period between 28 May 1997 and the date of the present judgment for the calculation of the adjusted amount of compensation. The Court will therefore award compensation corresponding to inflation adjustment having regard to its approach in similar cases (see Aka, cited above, §§ 53-57, and Zeki Kaya v. Turkey, no. 22388/07, §§ 74-78, 12 February 2019).

47.  According to the inflation calculation tool provided on the website of the Turkish Central Bank[2], the amount awarded by the Ankara Administrative Court – that is, TRY 1,996.25 – would have been worth approximately TRY 133,488 (approximately EUR 20,000) in February 2020 (the latest inflation values available to the Court at the date of the present judgment), taking 28 May 1997 as the date of reference.

Having regard to the foregoing calculation, the Court therefore awards the applicants jointly EUR 20,000 in respect of pecuniary damage.

48.  Furthermore, having regard to all the circumstances of the present case, the Court considers that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

49.  The applicants did not submit any claim for costs and expenses. The Court will therefore make no award under this head.

50.  The Court considers it appropriate that the default interest rate 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 applications admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there has been a violation of Article 1 of Protocol No. 1;Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 4,000 (four 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 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 applicants’ claims for just satisfaction.

Done in English, and notified in writing on 7 July 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris
Deputy RegistrarPresident

Appendix

List of applicants:

Application no 8469/12

No.

Applicant’s Name

Birth date

Nationality

Place of residence

1

Selime ALP

24/09/1993

Turkish

Ankara

Application no 14040/12

No.

Applicant’s Name

Birth date

Nationality

Place of residence

1

Yavuz ALP

16/09/1952

Turkish

Ankara

2

Oruç Yasin ALP

02/02/1995

Turkish

Ankara

[1]  On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL) TRY 1 = TRL 1,000,000.

[2]  See http://www.tcmb.gov.tr/ This tool adjusts any sum of money for inflation on the basis of the Consumer Price Index and thus measures the buying power of the Turkish lira over time.

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