SECOND SECTION
DECISION
Application no. 42166/15
Dursun ŞAHİNER
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 February 2020 as a Committee composed of:
Egidijus Kūris, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 18 August 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Dursun Şahiner, is a Turkish national, who was born in 1954 and lives in Karaman. He was represented before the Court by Mr U. Aktay, a lawyer practising in Mersin.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant had a plot of land in Ermenek, Karaman, which had been registered in the land register as plot no. 588 and parcel no. 63.
4. In 2002, the Ministry of Energy and Natural Resources approved a project concerning construction of a dam and hydroelectric power plant in Ermenek. In 2006, the General Directorate of State Water Board ("the administration") declared this project to be of public interest. The applicant was among the owners affected by the project.The urgent expropriation procedure
5. By a decision published in the Official Gazette on 31 January 2009, the Council of Ministers decided that the land concerned would be expropriated under the urgent expropriation procedure pursuant to section 27 of the Expropriation Act.
6. On 30 December 2009 the Ermenek Civil Court of General Jurisdiction authorised the administration to take possession of the land before the acquisition of its ownership and awarded the applicant a compensation amount of 34, 615 Turkish liras (“TRY”). The ordinary expropriation procedure
7. On 27 July 2011 the administration lodged a case against the applicant, requesting the Ermenek Civil Court to register the impugned land in its name in the land register and to determine the amount of compensation for expropriation.
8. On 28 December 2012 the Ermenek Civil Court held that the land at issue be registered in the name of the administration and determined the total amount of compensation as TRY 42,587. The domestic court dismissed the applicant’s claim concerning interest. As regards legal fees (avukatlık vekalet ücreti), it ordered the parties to pay each other a lump sum of TRY 1,520.
9. On 10 March 2014 the Court of Cassation upheld the judgment with an amendment. The appellate court found that a statutory interest running from 28 December 2011 to 28 December 2012 should have been applied to TRY 7,951, that is, the difference between the compensation amounts determined by the Ermenek Civil Court regarding the urgent and ordinary expropriation procedures.Relevant domestic law and practice
10. The domestic legislation regarding the expropriation procedure and the costs and expenses may be found in Musa Tarhan v. Turkey (no. 12055/17, §§ 31-40, 23 October 2018).
11. Following the Court’s judgment in Musa Tarhan (cited above) the Turkish Constitutional Court reviewed its practice and followed the Court’s approach with regard to the legal fees(see the Turkish Constitutional Court’s judgment in the case of Sadettin Ekiz, no. 2016/9364, 9 May 2019).
12. Meanwhile, the Grand Chamber of the Court of Cassation’s Civil Division (Yargıtay Hukuk Genel Kurulu) adopted the same approach (no.2019/241E., 2019/560K., 14 May 2019).
13. As regards the depreciation of the compensation due to the inflation, in its Ali Şimşek and others (2014/2073, 6 July 2017) and Cevat Aydın (no. 2014/13886, 4 October 2017) judgments, the Turkish Constitutional Court reviewed its practice by following the Court’s approach in the case of Dökmeci v. Turkey (no. 74155/14, 6 December 2016).
COMPLAINTS
14. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the domestic court’s order, obliging him to pay a lump sum to the opposing party in respect of lawyer’s fees. He also complained about the fact that no interest had been applied to the amount awarded by the domestic courts.
15. The applicant further argued under Article 1 of Protocol No. 1 to the Convention that the amount of compensation awarded to him had not been sufficient as it had not covered all of his loss resulting from the expropriation of his land.
16. Relying on Article 6 of the Convention, the applicant alleged that the domestic courts had failed in the assessment of evidence and examination of the facts of the case when determining the real value of his land.
17. Lastly, relying on Article 8 of the Convention, the applicant contended that in fixing the amount of expropriation compensation the domestic court had not taken into account the fact that he had been a farmer and that the land concerned had been used for agricultural purposes.
THE LAWThe complaints regarding the reduction in the compensation value
18. The applicant complained of the reduction in the expropriation compensation resulting from both the order to pay the cost of the expropriating authority’s legal representation and the high inflation rates.
19. As regards the part of the complaint concerning the depreciation of the compensation awarded, the Court notes that although the sum awarded to the applicant by the Ermenek Civil Court was not accompanied by interest, the Court of Cassation eventually decided to apply statutory interest to that amount. Taking into account the effect of inflation during the period under consideration, it observes that the applicant’s expropriation compensation had lost 0.76 % of its value.
20. The Court considers that such a minor difference of less than 5% between the amount paid and the full compensation can be considered as a margin of imprecision resulted from the method of calculation (see, among many others, Arabacı v. Turkey (dec.), no.65714/01, 7 March 2002; Kurtuluş v. Turkey (dec.), no.24689/06, 28 September 2010; and Alan v. Turkey (dec.), no. 77964/14, 2 July 2019). In these circumstances, the Court is of the opinion that the total amount paid to the applicant was satisfactory, even if it does not seem to constitute full compensation (see, among many other authorities, Şanlı and Others v. Turkey (dec.), no. 5043/02, 3 July 2006, and Tarcan v. Turkey (dec.), no. 19524/02, 23 May 2006). Consequently, the applicant cannot be regarded as having suffered any serious loss due to the interest rates applied.
21. As regards the part of the complaint concerning the legal fees to be paid, the Court reiterates that it stated in its judgment in the case of Musa Tarhan, that the order for the applicant to pay the cost of the expropriating authority’s legal representation had been incompatible with the right to the peaceful enjoyment of one’s possessions on accounts of two cumulative elements. Firstly, the applicant could not in any way be held responsible for the opening of the legal proceedings. Secondly, the fees in question amounted to 60% of the compensation which was tantamount to depriving the applicant of a substantial part of his compensation (cited above, § 86).The Court further stated that it did not rule out the possibility that a different outcome might emerge under other specific circumstances (ibid., § 87).
22. The Court observes in the present case that the amount of the legal fees to be paid by the applicant is equivalent to 2.81% of the total sum of compensation awarded, a fact which considerably distinguishes the applicant’s situation from the above-mentioned case. It considers accordingly that such a reduced loss does not constitute a deprivation of a substantial part of the applicant’s compensation.
23. The Court further observes that even combining the amount of loss arising from both the order to pay the lawyer’s fee (2,81%) and the high inflation rates (0,76%), the total loss suffered by the applicant cannot still be considered significant. In this regard, drawing inspiration from its above‑cited Arabacı and Kurtuluş case-law, it considers that a total loss of below 5% does not constitute an excessive burden which upsets the fair balance to be struck between the general interest of the community and the fundamental rights of the individual.
24. In view of the above considerations, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.Other Complaints
25. The applicant complained under Article 1 of Protocol No. 1 about the insufficiency of the amount of compensation awarded to him. He also argued under Article 6 of the Convention that the domestic courts had failed to correctly assess the evidence and examine of the facts of the case. Lastly, he alleged a violation of Article 8 of the Convention.
26. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
27. It follows that these parts of the application are manifestly ill‑founded and must be rejected in accordance with the Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 March 2020.
Hasan BakırcıEgidijus Kūris
Deputy RegistrarPresident
Full & Egal Universal Law Academy