THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47574/99
by Şenay ÇORUH
against Turkey
The European Court of Human Rights (Third Section), sitting on 7 October 2004 as a Chamber composed of:
MrG. Ress, President,
MrI. Cabral Barreto,
MrR. Türmen,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 23 March 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Şenay Çoruh, is a Turkish national, who was born in 1937 and lives in Istanbul. She is represented before the Court by Mr Bahri Belen and Mr Mehmet Semih Gemalmaz, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1996 the National Water Board (Devlet Su Işleri) expropriated a part of the applicant's plot of land. A committee of experts assessed the value of the plot of land belonging to the applicant and the compensation was paid to her.
Following the applicant's request for increased compensation, on 14 July 1997 the Bursa Civil Court of First Instance taking into consideration experts' report awarded her an additional compensation plus an interest at the statutory rate applicable at the date of the court's decision.
On 14 October 1997 the Court of Cassation held a hearing and quashed the judgment of the Bursa Civil Court. The court considered that the plot of land was a 1.degree conservation area (1. derece sit alanı) where no building was authorised and therefore the amount of compensation attributed to the applicant was excessive. The court further considered that the expropriation consisted of a right to passage two metres underneath the plot of land and therefore the amount could not exceed the half of the value of the plot of the land. Finally, it stated that the determination of the value per m2 should be calculated taking into account its value per m2 at the time of the expropriation.
On 27 April 1998 the Bursa Civil Court of First Instance abided with the Court of Cassation's ruling and taking into consideration experts' report prepared in accordance with the aforementioned criteria of the Court of Cassation, awarded the applicant an additional compensation plus an interest at the statutory rate applicable at the date of the court's decision.
On 7 July 1998 the Court of Cassation held a hearing and upheld the judgment of the Bursa Civil Court. During the hearing the court noted that the applicant had requested the disqualification of the full-members of the Court of Cassation. The court rejected the applicant's request for disqualification of the full-members of the Court of Cassation pursuant to Article 39 § 3 of the Law no. 2797 where it is held that a demand for disqualification against the full-members of the Court cannot be examined.
On 6 October 1998 the Court of Cassation rejected the applicant's request for the rectification of the judgment of the Court of Cassation.
On 29 December 1998 the National Water Board paid the due amount to the applicant.
Details are indicated in the table below:
AMOUNT OF INITIAL COMPENSATION PAID TO THE APPLICANT
(in Turkish liras)
DATE ON WHICH THE APPLICANT INITIATED PROCEEDINGS FOR ADDITIONAL COMPENSATION
AMOUNT OF ADDITIONAL COMPENSATION (INTERESTS AND LEGAL COSTS ARE NOT INCLUDED)
(in Turkish liras)
DATE AND AMOUNT OF PAYMENT (INCLUDING STATUTORY INTEREST AT THE RATE OF 30 % & 50 % PER ANNUM AND COSTS)
(in Turkish liras)
444,400,000
28.08.1996
3,591,690,496
29.12.1998
7,101,232,000
COMPLAINTS
The applicant contends that the amount of additional compensation determined by the domestic courts was too low and that the method of determination of the relevant amount was not fair. In this connection the applicant asserts that the Court of Cassation unjustly interfered with the experts' way of calculating the amount. Moreover the applicant complains that Article 39 § 3 of Law No. 2797 violates the principles of subjective impartiality of judges and that its compatibility with the Constitution cannot be challenged. Finally, the applicant complains that the authorities had delayed in paying her the additional compensation and that at a time when the annual rate of inflation in Turkey had been very high, she had been paid insufficient interest. She invokes Articles 6 and 13 of the Convention and Article 1 of Protocol No.1.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 that the authorities had delayed in paying her the additional compensation and that at a time when the annual rate of inflation in Turkey had been very high, she had been paid insufficient interest.
The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government.
2. The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 that the amount determined by the courts was too low and that the method of determination of the relevant amount was not fair. In this connection the applicant asserts that the Court of Cassation unjustly interfered with the experts' way of calculating the due amount.
The Court considers that this part of the complaint falls naturally within the scope of Article 6 of the Convention and does not raise any issues under Article 1 of Protocol No.1. Accordingly, it will examine the complaint under the aforementioned Article only.
The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many others, Garcia Ruiz v. Spain, [GC], no. 30544/96, §§ 28‑29, ECHR 1999-I).
The Court points out that it is not required to decide on what basis the domestic courts should have assessed the amount of compensation payable; it cannot take the place of the domestic courts in determining what method of calculation should have been taken into consideration for the estimation of the value of the expropriated land and for the assessment of the sums due in consequence (see, mutatis mutandis, Malama v. Greece, no. 43622/98, § 51, ECHR 2001‑II). Considering that the Court of Cassation gave explicit reasons as to the grounds on why the amount initially determined by the first-instance court had to be revised and that throughout the proceedings, including before the Court of Cassation, the applicant was fully able to state her case, the Court considers that there is nothing to indicate that the taking and the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6.
Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
3. The applicant complains under Article 6 and 13 of the Convention that Article 39 § 3 of Law No. 2797 violates the principles of subjective impartiality of judges and that its compatibility with the Constitution cannot be challenged.
(a) The Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to the principles laid down in the Court's case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).
Furthermore, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48).
The Court notes, first of all, that there is no indication that any of the judges sitting on the bench of the Court of Cassation was actually, or subjectively, biased against the applicant. Nor did the applicant contend otherwise. In this connection, the Court observes that the applicant's complaint concerns the impossibility to disqualify all the sitting judges before the Court of Cassation pursuant to domestic law.
The Court recalls that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33).
Taking into consideration that the applicant did not provide the Court with any arguments how the above-mentioned domestic law had been applied to her detriment, the Court considers that her complaint has the nature of an actio popularis by means of which the applicant seeks a review in abstracto of the contested legislation in the light of the Convention.
Accordingly, the Court finds that the applicant cannot claim to be a victim of a violation of Article 6 of the Convention and it follows that the application must be rejected under Article 35 of the Convention.
(b) Regarding the applicant's complaint under Article 13 of the Convention, the Court points out that according to the its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
In view of its conclusions above, the Court considers that the applicant have no arguable claim of a violation of her rights in conjunction with her complaint under the above-mentioned Article, which would have required a remedy within the meaning of Article 13. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning the delay of the authorities in payment of the additional compensation and the insufficient interest applied to the additional compensation;
Declares the remainder of the application inadmissible.
Vincent BergerGeorg ress
RegistrarPresident
Full & Egal Universal Law Academy