AS TO THE ADMISSIBILITY OF
Application No. 23887/94
by Süleyman EGE
against Turkey
The European Commission of Human Rights (First Chamber) sitting
in private on 5 March 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 February 1994
by Mr. Süleyman Ege against Turkey and registered on 14 April 1994
under file No. 23887/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen born in 1931 and resident in
Ankara, is a publisher.
The facts as submitted by the applicant may be summarised as
follows.
In 1982 the Ankara Martial Law Command ordered the seizure of 30
different books published by the applicant and forcibly closed the
premises of his Publishing House. 133.607 copies of these books were
seized by the police on the orders of the Martial Law Command.
On 26 May 1985 the National Security Committee had decided to
lift the Martial Law as from 3 July 1985.
On 28 May 1985 the Ankara Martial Law Command ordered the
destruction of the seized books.
On 3 June 1985 the books were burnt and completely destroyed
under the supervision of three military and one civilian staff of the
Ankara Martial Law Command.
On 8 August 1985 the applicant applied to the Prime Minister's
Office and asked for compensation of his losses. His request remained
unanswered.
On 28 November 1985, the applicant instituted proceedings for
compensation against the Prime Minister's Office. Without prejudice to
claim the damages in excess, he asked for a compensation of 115 million
Turkish Lira for pecuniary damages, being the estimated value of the
destroyed books as on October 1985, and 25 million Turkish lira for non
pecuniary damages. He also claimed legal interest to run as from 28
August 1982.
In a decision dated 27 June 1989 the Ankara Administrative Court,
found the Prime Minister's Office responsible for the damages. It,
however, granted the applicant only 35.481.450 Turkish Lira as
compensation for pecuniary damages. The Court, based its assessment of
the damages on the estimated 1982 value of the books. It found no
grounds to grant compensation for non-pecuniary damages.
The applicant appealed.
In a decision dated 17 April 1990 the Council of State quashed
the decision of the Ankara Administrative Court. As regards the
pecuniary damages, it held that the compensation should have been
assessed on the basis of 1985 value of the books. It also held that
applicant's claim for non-pecuniary damages should have been granted.
The Ankara Administrative Court, having regard to the decision
of the Council of State, applied for an expert opinion in order to have
the damages suffered by the applicant evaluated. In a report dated
7 June 1991, the experts stated that the value of the books in 1985 was
of 121.637.695 Turkish Lira. In a report dated 8 July 1991, the
experts, in addition to their prior conclusion, commented that the
estimated 1991 value of the books at question was not less than
2.067.840.815 Turkish lira.
On 21 June 1991 the applicant submitted a statement to the Court,
whereby he requested, as his additional losses, the difference between
his original claim for pecuniary damages (115 million Turkish Lira plus
legal interest) and the then current value of the books estimated by
the Experts (2.067.840.815 Turkish Lira). He asserted that having
regard to the estimated then current value of the destroyed books, his
real losses could not be fully compensated, even if the Court would
grant his original claim.
On 26 September 1991 the Ankara Administrative Court decided that
the Prime Minister's Office should pay the applicant a compensation of
115.000.000 Turkish Lira for pecuniary damages together with legal
interest to be applied as from 8 August 1985. It also granted a
compensation of 25 million Turkish Lira for non-pecuniary damages. The
Court held that although the experts had commented that the value of
the books in 1985 was of 121.637.695 Turkish Lira, it was not
authorised by law to grant any amount in excess of the original claim.
The applicant appealed. He, inter alia, reiterated the arguments
which he had raised in his statement to the Ankara Administrative Court
dated 21 June 1991. The Administration also appealed and asserted that
the applicant was not entitled to any compensation.
In a judgment dated 7 April 1993, the Council of State dismissed
the appeal. It held that "the fact that the Ankara Administrative Court
had limited the award to 115.000.000 Turkish Lira, as claimed by the
applicant, did not contravene the Administrative Law.
The Administration requested the rectification of this decision
(karar düzeltmesi). The applicant did not apply for rectification or
make any submission in reply to the Administration's request.
On 20 October 1993 the Council of State dismissed the
Administration's request.
At the time when he lodged his application with the Commission,
the applicant had not received the compensation award. He has later
informed the Commission that he had finally received 458.233.000 Lira
as compensation for his losses, which included legal interest until the
date of payment. The applicant was paid 451.400.000 Lira on
1 March 1994 and 6.833.000 Lira on 20 July 1994.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he did not have a fair trial in the proceedings for compensation
in that, the Ankara Administrative Court and the State Council failed
to consider his additional claim for compensation and while ruling on
the merits, failed to reply to his arguments.
2. The applicant also complains under Article 1 of Protocol No. 1
that the destruction of his books constituted an unjustified
deprivation of his possessions.
3. The applicant lastly complains under Article 1 of Protocol No.
1 of an unjustified interference with his right to respect for his
possessions to the extent that he has not been fully compensated for
his real losses arising from the destruction of his books. He asserts
in this regard that the rate of legal interest which applied to his
compensation claim for a period of nine years between the date of
introduction of his claim in 1985 and the date of payment in 1994 was
lower than the rates of inflation during that period.
THE LAW
1. The applicant complains that he did not have a fair trial in the
proceedings for compensation, in that the Court did not consider his
request for compensation for his additional losses and while ruling on
the merits, failed to reply to his arguments. He invokes Article 6
para. 1 (Art. 6-1) of the Convention which, in so far as relevant
provides:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ... by [a]
... tribunal established by law".
The Commission notes that Turkey has recognised the competence
of the Commission to receive individual petitions under Article 25
(Art. 25) of the Convention only in relation to allegations made in
respect of the facts, including judgments which are based on such
facts, which have occurred subsequent to 28 January 1987. It must
therefore, in the first place, decide whether and to what extent it is
competent ratione temporis under Article 25 (Art. 25) of the Convention
to examine the applicant's complaints.
The Commission recalls that the proceedings before a court are
embodied in its final decision which thus incorporates any defect by
which they may have been affected (see, No. 6916/75, Dec. 8.10.76, D.R.
6, pp. 107, 111; see also, mutatis mutandis, H. v. Finland, Comm.
Report 5.4.95, para. 99). The Commission observes that in the present
case, the proceedings were concluded by the decision of the Court of
Cassation dated 20 October 1993, that is after Turkey's recognition of
the Commission's competence to receive individual petitions. Therefore
as regards the complaint in question, the proceedings at issue fall
within the Commission's competence ratione temporis.
However, the Commission recalls that in accordance with Article
26 of the Convention, "it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law ..." In particular, the
obligation to exhaust domestic remedies is limited to making normal use
of the remedies which are likely to be effective, adequate and
accessible (see e.g., No. 15117/89, Dec. 16.1.95, D.R. 80, p. 5).
The Commission recalls that in administrative proceedings in
Turkey, a request for rectification of judgment, in principle,
constitutes an effective and accessible remedy within the meaning of
Article 26 (Art. 26) of the Convention (cf. No. 20704/92, Kalaç v.
Turkey, Dec. 10.1.95, unpublished).
However, in the present case, the applicant did not apply for the
rectification of the Council of State's decision dated 7 April 1993 or
bring his arguments before the Council of State in reply to the
Government's petition for rectification. Moreover the Commission does
not find any special circumstances which could dispense the applicant
from the obligation to apply for the rectification of judgment in order
to exhaust domestic remedies (cf. No. 16278/90, Karaduman v. Turkey,
Dec. 3.5.93, D.R. 74, p. 93).
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant also complains that the destruction of his books
amounted to an unjustified interference with his right to peaceful
enjoyment of his possessions. He invokes Article 1 of Protocol No. 1
(P1-1) which in so far as relevant reads as follows:
"Every natural ... 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".
As the Commission observed above, Turkey has recognised the
competence of the Commission to receive individual petitions under
Article 25 (Art. 25) of the Convention only in relation to allegations
made in respect of the facts, including judgments which are based on
such facts, which have occurred subsequent to 28 January 1987.
In the present case, however, the Commission notes that the
destruction of the books took place on 3 June 1985, which is before the
afore-mentioned date.
It follows that this part of the application is outside the
competence ratione temporis of the Commission and therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
3. The applicant lastly complains of a violation of Article 1 of
Protocol No. 1 (P1-1) in that, he was not fully compensated for his
real losses arising from the destruction of his books in so far as the
rate of legal interest which applied to his compensation claim for a
period of nine years between the date of introduction of his claim in
1985 and the date of payment in 1994 was lower than the rates of
inflation during that period.
The Commission finds that in so far as the applicant's complaint
can be understood as relating to the adequacy of the sum awarded by the
national courts on 20 October 1993 as due to the applicant by way of
principal and interest, it falls outside the Commission's competence
ratione materiae, since until the national courts had determined that
compensation was payable and the amount of any such compensation, the
applicant had no "possession" within the meaning of Article 1 of
Protocol No. 1 (P1-1): at most he had a legitimate expectation that his
claim for compensation would be determined by the courts in accordance
with national law and this was fulfilled.
In so far as the complaint can be understood as being related to
the inadequacy of the legal interest which applied to the compensation
award from 20 October 1993 until the payment date, the Commission
observes that the major part of the compensation was paid on
1 March 1994, i.e., four months and ten days after the final decision.
Therefore the delay in the payment of the compensation award was not
unduly lengthy. The Commission further notes that the legal interest
continued to apply until the date of payment. In these circumstances,
the Commission finds that there has been no interference with the
applicant's right to peaceful enjoyment of his possessions within the
meaning of Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy