THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application nos. 68127/01
by Osman KİNSİZ
against Turkey
The European Court of Human Rights (Third Section), sitting on 6 February 2003 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrP. Kūris,
MrR. Türmen,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrsH.S. Greve, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 23 November 1998,
Having deliberated, decides as follows:
THE FACTS
The applicant, Osman Kinsiz, is a Turkish national, who was born in 1949 and lives in Istanbul. He was represented before the Court by Mr Kocak, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated a plot of land belonging to the applicant in Istanbul. A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place.
On 22 October 1996, following the applicant’s request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded him an additional compensation of 451,254,848 Turkish liras (TRL) plus an interest at the statutory rate of 30% per annum. On 31 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount which was 837,196,000 Turkish liras (TRL) including the interest, was paid to the applicant on 26 May 1998.
B. Relevant domestic law
Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000.
A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.
COMPLAINTS
The applicant complained under Article 1 of Protocol No. 1 to the Convention that at a time when the annual rate of inflation in Turkey had been very high, he had been paid insufficient interest on additional compensation received following the expropriation of his land and the authorities had delayed in paying him the relevant amounts.
THE LAW
The applicant complained that the insufficient interest on additional compensation that he has received following the expropriation of his land was in breach of his right guaranteed under Article 1 of Protocol No. 1 to the Convention. Furthermore he maintained under the same Article that the authorities delayed in paying his the relevant amounts.
Article 1 of Protocol No. 1 provides:
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. Exhaustion of domestic remedies
The Government pleaded failure to exhaust domestic remedies in that the applicant had not brought an action for reparation under Article 105 of the Code of Obligations.
The applicant submitted that Article 105 of the Code of Obligations does not provide a remedy for those who claim an additional compensation for their damages caused by late payment.
The Court reiterates that the only remedy which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Akdıvar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 66, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, § 38).
The Court recalls its earlier finding in the Aka v. Turkey case (see Aka, cited above, §§ 35-36), where it held that the creditors of the State cannot rely on the means of redress provided under Article 105 of the Code of Obligations to afford them a prospect of obtaining damages for loss resulting from monetary depreciation exceeding interest for delay awarded under Law no. 3095.
In the light of the above, the Court holds that, in the present case, the Article 105 of the Code of Obligations does not provide an adequate and effective remedy which the applicant had to exhaust. Consequently, the Court dismisses the Government’s preliminary objection of non-exhaustion.
2. Merits
The applicant complained that the authorities delayed in paying them the additional compensation. He further complained that the interest rate of 30% per annum, which was applied to calculate the additional compensation paid to the applicant for the period between the date on which the title of the land is transferred to the State and the date of the actual payment to the applicant, was much less than the average inflation rate of the period. In this regard, he pointed out that the interest rate per annum, for the period between the date on which the Court of Cassation delivered its judgment and the actual date of payment, was 50%. Therefore he concluded that in any case he has suffered a loss.
The Government submitted that the additional compensation was paid to the applicant on 26 May 1998 which is one month and twenty-six days after the date of final decision delivered by the Court of Cassation. With reference to the Court’s Akkuş v. Turkey judgment of 9 July 1997 (see Akkuş, cited above, § 35) the Government contended that fifty-six days is a reasonable period to make the payment which fully compensates the applicant’s losses.
As the situation of which the applicant complains concerns his entitlement to the peaceful enjoyment of his possessions, the Court must examine whether a fair balance has been maintained between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights; in that regard the terms and conditions on which the compensation is payable under domestic legislation and the manner in which they were applied to the applicant’s case must be considered (see Lithgow and others v. the United Kingdom, judgment of 8 July 1996, Series A no. 102, p. 50, § 120)
The Court reiterates that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay (see, mutatis mutandis, Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 90, § 82). As the Court held in its Akkuş v Turkey judgment, abnormally lengthy delays in the payment of compensation for expropriation lead to increased financial loss for the person whose land has been expropriated, putting him in a position of uncertainty especially when the monetary depreciation which occurs in certain States is taken into account (see Akkuş, cited above, § 29).
The Court notes that, in the present case, the additional compensation together with the interest at the rate of 30% per annum and from 1 January 1998 at the rate of 50% per annum was paid to the applicant on 26 May 1998, that is to say less than two months after the Court of Cassation’s judgment. Considering its finding in the Akkuş case where it held that a reasonable period to pay the due compensation was for instance three months running from the date of final decision of the Court of Cassation (see Akkuş, cited above, § 35) the Court concludes that, in the present case, the applicant received the additional compensation within a reasonable time.
Moreover the Court observes that during the period in question there was no noticeable change in the monetary depreciation in the country to undermine the value of compensation paid to the applicant.
Consequently, the applicant cannot be regarded as have endured a considerable loss deriving from the deferral of payment which was only fifty-six days.
The Court concludes, therefore, that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy