THIRD SECTION
DECISION
Application no. 42135/98
by Fatma YILMAZ and Others
against Turkey
The European Court of Human Rights (Third Section), sitting on 21 November 2002 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrB. Zupančič,
MrsH.S. Greve, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 25 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Fatma Yılmaz, Ms Hatice Kabasakal, Mr Sadullah Yılmaz, Ms Reyhan Gök, Mr Mehmet Yılmaz, Ms Fatma Yüksel, Ms Melek Öner, Ms Ayşe Kabasakal and Ms Kezban İncesu, are Turkish nationals, who were born in 1951, 1969, 1973, 1971, 1967, 1937, 1953, 1935 and 1953 respectively and live in Ankara. They were represented before the Court by Mr G.Ç. Ekşioğlu, a lawyer practising in Ankara. The respondent Government were represented by Mr K. Gür, Deputy Director General for the Council of Europe and Human Rights, Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), expropriated plots of land belonging to the applicants in Pursaklar, Solfasol and Bağlum, Ankara in order to build a motorway. Expropriations took place between February 1993 and May 1995. A committee of experts assessed the value of the plots of land belonging to each of the applicants and compensation was paid to them individually when the expropriation took place.
Following the applicants’ requests for increased compensation, the first instance court awarded them additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date for the running of the statutory rate of interest was fixed by the domestic court in respect of each applicant. The applicants appealed and the Court of Cassation upheld the decision of the first instance court. In January and February 1998 the administration paid the applicants the additional compensation awarded to them together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the Court of Cassation in favour of each applicant and 31 December 1997, namely 30%. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%.
Between 1993 and 1999 the rate of inflation averaged 81.7% per annum.
COMPLAINT
The applicants complained under Article 1 of Protocol No. 1 to the Convention that the rate of interest applied to the calculation of the additional compensation granted to them for the expropriation of their land was too low. They also complained of the delays in obtaining their compensation.
THE LAW
On 13 December 2001 the Court received the following declaration signed by the applicant’s representative:
“In my capacity as the representative of the applicants, Ms Fatma Yılmaz, Ms Hatice Kabasakal, Mr Sadullah Yılmaz, Ms Reyhan Gök, Mr Mehmet Yılmaz, Ms Fatma Yüksel, Ms Melek Öner, Ms Ayşe Kabasakal and Ms “Kezban İncesu” [Mr Hazım İncesu, Mr Nevzat İncesu, Mr Mustafa İncesu, Ms Emine Lale İncesu, Ms Seyit Haksever İncesu and Mr Yunus İncesu], I have taken cognizance of the declaration of the Government of the Republic of Turkey that they are prepared to make an ex gratia all-inclusive payment of 50,000 (fifty thousand) United States dollars (USD) with a view to concluding a friendly settlement of the case that originated in application no. 42135/98. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal expenses connected with the case, will be paid in accordance with the terms stipulated in the said declaration within three months after the notification of the decision delivered by the Court ...
Having duly consulted the applicants, I accept the proposal and they, in consequence, waive all other claims against Turkey in respect of the matters that were at the origin of the application ...
This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicants, have reached.”
On 6 March 2002 the Court received the following declaration from the Government:
“I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants, Ms Fatma Yılmaz, Ms Hatice Kabasakal, Mr Sadullah Yılmaz, Ms Reyhan Gök, Mr Mehmet Yılmaz, Ms Fatma Yüksel, Ms Melek Öner, Ms Ayşe Kabasakal and Ms “Kezban İncesu” [Mr Hazım İncesu, Mr Nevzat İncesu, Mr Mustafa İncesu, Ms Emine Lale İncesu, Ms Seyit Haksever İncesu and Mr Yunus İncesu], an all-inclusive amount of 50,000 (fifty thousand) United States dollars (USD) with a view to securing a friendly settlement of their application registered under no. 42135/98. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in United States dollars to a bank account named by the applicants and / or their duly authorised representative. This sum shall be payable within three months from the date of notification of the Court’s decision ... This payment will constitute the final settlement of the case ...”
The Court notes that the applicant, Ms Kezban İncesu, died after lodging her application with the Court and that her legal heirs informed that they wanted to continue the proceedings before the Court.
The Court, therefore, concludes that the applicant’s heirs have a legitimate interest in continuing the proceedings.
The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
Accordingly, the case should be struck out of the list.
For these reasons, the Court unanimously
Decides to disjoin the application from applications nos. 41949/98, 41985/98, 41987/98, 41988/98, 42121/98, 42125/98, 42128/98, 42129/98, 42131/98, 42441/98 and 42446/98;
Decides to strike the application out of its list of cases.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy