Information Note on the Court’s case-law 202
December 2016
Dökmeci v. Turkey - 74155/14
Judgment 6.12.2016 [Section II]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Failure to pay interest on final instalment of compensation for expropriation despite the owner being deprived of possession after payment of the provisional instalment:violation
Facts – Mr Dökmeci was the owner of farmland. In 2006 the planned construction of a dam and a hydroelectric power-station was declared to be a public-interest project. In 2009 it was decided that the land concerned by the project would be subject to the urgent expropriation procedure (section 27 of the Expropriation Act, Law no. 2942), allowing provisional compensation to be fixed after a site inspection without the expropriated owner being present. The authority immediately paid the sum thus fixed and was authorised to take possession of the land. In 2010 the authority applied to the court for determination of the compensation that would result, this time, from the “ordinary” procedure (section 10 of the Expropriation Act), providing for the owner’s participation in the site inspection. In 2012 the court fixed the final compensation amount, of which the provisional amount covered slightly less than half (45%); the balance was paid later that year and the title to the land was then transferred. The applicant appealed in vain to the Court of Cassation and then to the Constitutional Court. In his view, the method applied for the calculation of the interest did not sufficiently compensate for inflation.
Law – Article 1 of Protocol No. 1: The deprivation of property had been lawful. The proportionality of the burden remained to be examined.
The additional sum allotted to the applicant after the second procedure did not include interest. In view of the inflation rate during the period in question – from the date of the application to the court until the judgment –, that part of the compensation had lost about 14% in value.
Like the Constitutional Court, the Court was of the opinion that the depreciation of the second part of the compensation had to be looked at in terms of the total amount awarded. The urgent and ordinary procedures in fact formed a single procedure; they had to be assessed as a whole. The depreciation to be taken into account was thus 7.7%.
The Constitutional Court did not see this as a disproportionate and excessive burden, noting moreover that the applicant had been able to use, spend or invest part of the compensation about eleven months before the start of the normal procedure.
The Court did not agree with that conclusion. The present case had to be distinguished from other cases that it had dealt with concerning the same subject matter against Turkey.
(i) In its decisions in Güleç and Armut (25969/09, 16 November 2010) or Bucak and Others (44019/09, 18 January 2011), the Court had accepted that depreciation of compensation for expropriation rising to 10.74% had not imposed a disproportionate and excessive burden. But the applicants had continued to use their property during the period in question; this had partly but sufficiently compensated for the depreciation of their award. In the present case, however, the applicant had been deprived of his land from the end of the urgent procedure and thus had not been able to use it during the period in question.
(ii) In its decisions in Arabacı (65714/01, 7 March 2002) and Kurtuluş (24689/06, 28 September 2010), the depreciation in question was significantly lower than that in the present case (5% and 3.67% respectively).
In the Court’s view the Constitutional Court and the Government had erroneously argued as follows.
(a) That the applicant had been able to use, spend or invest part of the compensation about eleven months before the start of the ordinary procedure; this argument was speculative and ill-founded, since the applicant had lost possession of his land at the same time as receiving the first payment.
(b) That the first part of the compensation was deducted from the final award only for its nominal value and not for its updated value on the date of the application to the court; the benefit of this for the applicant was minimal, especially in view of his inability to use his property during the period in question and to obtain the whole award corresponding to the value of his land from the time he lost possession.
(c) That the final compensation had been increased by the rise in value of the expropriated property in the meantime; this argument was speculative, there being no certainty in this respect. In any event, the Government could not take advantage of a situation that the authorities had themselves created by introducing with some delay the procedure provided for by section 10 of the Expropriation Act.
Thus the discrepancy between the value of the compensation at the time of the application to the court and its value when actually paid had to be regarded as attributable to the lack of interest.
In the Court’s view, the applicant had borne a disproportionate and excessive burden, which had upset the requisite fair balance between the safeguarding of the right of property and the demands of the general interest.
Conclusion: violation (unanimously).
Article 41: EUR 11,700 for pecuniary damage; finding of a violation sufficient for non-pecuniary damage.
(See Yetiş and Others v. Turkey, 40349/05, 6 July 2010, Information Note 132)
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This summary by the Registry does not bind the Court.
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