THIRD SECTION
DECISION
Application no. 33903/02
by Mustafa YILMAZ
against Turkey
The European Court of Human Rights (Third Section), sitting on 1 December 2005 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrsM. Tsatsa-Nikolovska,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 10 July 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mustafa Yılmaz, is a Turkish national who was born in 1919 and lives in Kahta. He is represented before the Court by Ms R. Bozan, a lawyer practising in Kahta.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date the Kahta Municipality expropriated a plot of land belonging to the applicant, who received compensation.
On 10 March 2000 the applicant brought an action for additional compensation before the Kahta Civil Court of First Instance against the Municipality.
On 14 June 2000 the Civil Court awarded the applicant additional compensation of TRL 16,064,000,000 plus an interest at the statutory rate applicable at the date of the court’s decision.
On 27 June 2000 the applicant lodged a further action for damages caused to the crops on his land.
On 18 July 2000 the court awarded the applicant TRL 300,000,000 with a statutory rate of interest added.
On 21 December 2000 and 15 January 2001 the Court of Cassation upheld the above judgments.
On 22 June 2005 the applicant’s representative and the Kahta Municipality signed a protocol by which the Municipality declared that it was to pay the applicant 58,150 new Turkish liras (YTL) including the principal debt, the interest rates, all costs and expenses, and the lawyer’s fee. According to the protocol, this sum would be paid in three instalments YTL 20,000 on 17 July 2005, YTL 20,000 on 15 August 2005, and YTL 18,150 on 15 September 2005 respectively. In return, the applicant declared that no claim or credit would remain in favour of him when the total amount was paid to him or his representative.
By a letter dated 23 September 2005, the applicant’s representative informed the Court that they had received the last instalment on 15 September 2005, and thus full sum had been paid.
COMPLAINT
The applicant complained under Article 1 of Protocol No. 1 on account of the non-payment of the sums he was awarded by the domestic court.
THE LAW
By a letter dated 29 August 2005, the Government informed the Court that the Kahta Municipality had signed a protocol with the applicant’s representative by which the Municipality declared that it was to pay the applicant YTL 58,150, including the principal credit, the interest rates, all costs and expenses and the lawyer’s fee. According to the protocol the debt would be paid in three instalments. By this protocol the applicant declared that no claim or credit remained in favour of him when the total amount was paid to him or his representative.
By a letter dated 23 September 2005, the applicant’s representative confirmed the contents of the Government’s letter. She further stated that they had received full payment in instalments on the above-mentioned dates, the last one of which was on 15 September 2005.
The Court takes note of the protocol of 22 June 2005, signed between the Kahta Municipality and the applicant’s representative.
The Court reiterates the terms of Article 37 § 1 of the Convention, which reads in so far as relevant as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (...)
(b) the matter has been resolved; or
...”
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In the present case, the Court considers that the matter has been resolved since the applicant’s complaint was related to non-payment of the sum, which has been paid by the Kahta Municipality, following the protocol signed between them. Furthermore, the applicant waived any claim and credit remained in favour of him upon full receipt of the payment, which was the subject matter of the present application.
The Court further considers that respect for human rights as defined in the Convention or in its Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention). It therefore decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy