SECOND SECTION
DECISION
Applications nos. 35335/05 and 41170/05
Hatice ELGÜL and others against Turkey
and Tahir CANATAN and others against Turkey
The European Court of Human Rights (Second Section), sitting on 17 October 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 20 September 2005 and 31 October 2005 respectively,
Having regard to the declaration submitted by the respondent Government on 10 April 2017 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The list of applicants is set out in the appended table. The applicants are Turkish nationals. They were represented before the Court by Mr Y. Uysal, a lawyer practicing in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants complained under Article 1 of Protocol No. 1 to the Convention about the non-application of the maximum interest rate as provided in Article 46 of the Constitution to the compensation awards for their de facto expropriated plots of land.
4. The applications had been communicated to the Government.
THE LAW
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
6. The applicants complained that the domestic courts’ decisions to apply the statutory rate of default interest to the sum they had been owed instead of the maximum rate applicable to formal expropriation procedures, as defined in Article 46 of the Constitution, had led to reduction in the amounts of compensation for de facto expropriation of their plots of land. They relied in this regard on Article 1 of Protocol No. 1 to the Convention.
7. After the failure of attempts to reach a friendly settlement, by a letter of 10 April 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
8. The separate declarations for both applications each provided as follows:
“I declare that the Government of the Republic of Turkey offers to pay to the applicants, a total of 1,350 (one thousand three hundred and fifty) Euros .
This sum, which is considered to be appropriate in the light of the jurisprudence of the Court, covers non-pecuniary damage as well as costs and expenses, and shall be paid in Turkish Liras, free of any tax that may be applicable. The sum shall be payable within three months from the date of delivery of decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.
The Government hereby wishes to express by way of unilateral declaration its acknowledgement that the applicants’ right to peaceful enjoyment of their possessions did not meet the standards enshrined in Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which was not in accordance with the requirements established by the case-law of the Court (Sarıca and Dilaver v. Turkey, no. 11765/05, 27 May 2010; Ergen v. Turkey, no. 35364/05, 7 December 2010). The Government respectfully invites the Court to declare that it is not justified anymore to continue the examination of the application and to strike the case out of its lists in accordance with Article 37 of the Convention.”
9. By letters of 3 August 2017, the applicants indicated that they were not satisfied with the terms of the unilateral declaration.
10. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.
11. It also reiterates that in certain circumstances, it may strike out an applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
12. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
13. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the de facto expropriation and the application of a lower rate of interest to compensation awards for de facto expropriations instead of the rate applicable to formal expropriation procedures (see Sarıca and Dilaver v. Turkey, no. 11765/05, §§ 38-52, 27 May 2010, and Ergen and Others v. Turkey, nos. 35364/05 and 4 others, §§ 27-30, 7 December 2010).
14. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).
15. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
16. The Courts considers that this amount (1,350 euros (EUR) per application) should be converted into the currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
17. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
18. In view of the above, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 16 November 2017.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
APPENDIX
Application no. and date of introduction
Applicant
Date of birth
Place of residence
35335/05
20 September 2005
Hatice ELGÜL
Selma GÜMÜŞ
Semra ALTUĞ
Sema AKKUŞ
Nusret ELGÜL
1924
1950
1955
1960
1947
İzmir
İzmir
İzmir
İzmir
İzmir
41170/05
31 October 2005
Tahir CANATAN
Fatmana CANATAN
Halil CANATAN
Hasan CANATAN
Feriş ERCEDOĞAN
1976
1945
1969
1964
1966
Antalya
Oss (the Netherlands)
Oss (the Netherlands)
Antalya
Oss (the Netherlands)
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