SECOND SECTION
CASE OF M. KAPLAN v. TURKEY
(Application no. 29016/04)
JUDGMENT
STRASBOURG
9 December 2008
FINAL
09/03/2009
This judgment may be subject to editorial revision.
In the case of M. Kaplan 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 Sally Dollé, Section Registrar,
Having deliberated in private on 18 November 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 29016/04) 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 Mehmet Kaplan (“the applicant”), on 25 March 2003.
2. The applicant was represented by Mr M. Birlik, a lawyer practising in Şanlıurfa. The Turkish Government (“the Government”) were represented by their Agent.
3. On 5 November 2007 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
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1941 and lives in Gaziantep.
5. The Ministry of Energy and Natural Resources expropriated a plot of land belonging to the applicant (plot no. 624) in the Aşağıçardak village, in Nizip, in order to build the Birecik dam.
6. On 8 February 1999 the applicant brought an action before the Nizip Civil Court of First Instance for additional compensation.
7. On 30 December 1999 the Nizip Civil Court of First Instance awarded the applicant additional compensation of 5,286,375,000 Turkish liras (TRL)[1] plus interest at the statutory rate, running from 5 March 1999.
8. On 19 June 2000 the Court of Cassation upheld the judgment of the first-instance court.
9. On 4 November 2002 and 23 May 2007 the administration paid the applicant TRL 15,853,159,343[2] and 7,799.64 new Turkish liras (TRY)[3] respectively in additional compensation, together with interest.
II. RELEVANT DOMESTIC LAW AND PRACTICE
10. The relevant domestic law and practice are set out in Kaçar and Others v. Turkey (nos. 38323/04, 38379/04, 38389/04, 38403/04, 38423/04, 38510/04, 38513/04, and 38522/04, 22 July 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
11. The applicant complained that the delay in the payment of the additional compensation he was awarded following the expropriation of his property, coupled with the low interest rates, had caused him to suffer a financial loss. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read insofar as relevant as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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
12. The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention, as he had failed to make proper use of the remedy available to him under Article 105 of the Code of Obligations. Under that provision, he would have been eligible for compensation for the loss allegedly sustained as a result of the delay in payment of the additional compensation if he had established that the loss exceeded the amount of default interest.
13. The Government added that the applicant had failed to respect the six-month rule, having lodged his application on 25 March 2003 whereas the Court of Cassation had delivered its judgment on 19 June 2000.
14. 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.
15. 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.
B. Merits
16. The Government maintained that the additional compensation had been fully paid on 4 November 2002 and 22 May 2007 whereas the applicant had omitted to mention the second payment in his complaints. In addition the applicant had not suffered any material loss as a result of the interest rates applied and the authorities’ delay in settling the relevant amount. Taking into account the Court’s above-mentioned Akkuş judgment, the State had fulfilled its obligation to respect the applicant’s right to the protection of his property under Article 1 of Protocol No. 1. Nor had there been any violation of Article 6 of the Convention or of Article 1 of Protocol No. 1.
17. The applicant did not comment on the payment made on 22 May 2007. He maintained his allegations and contested the Government’s arguments.
18. 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, cited above, §§ 22‑25). 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 paying the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner 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 applicant has 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.
19. 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
20. 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
21. The applicant claimed EUR 26,000 in respect of pecuniary damage and EUR 20,000 for non-pecuniary damage.
22. The Government contested these claims.
23. In respect of the applicant’s 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 applicant’s loss after the two payments is EUR 400. The Court considers in the light of its case law that the payment by the Government of the outstanding judgment debt would satisfy the applicant’s 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, § 30).
24. The Court accepts that the applicant 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 applicant EUR 3,000.
B. Costs and expenses
25. The applicant did not claim any costs and expenses. Accordingly, no award is made under this head.
C. Default interest
26. 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
1. Declares the application admissible;
2. 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;
3. 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 sums, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 400 (four hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage,
(ii) 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally DolléFrançoise Tulkens
RegistrarPresident
[1]. Equivalent to 9,705 euros (EUR) at the time.
[2]. Equivalent to EUR 9,459 at the time.
[3]. Approximately EUR 4,374 at the time.
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