(Application no. 67240/01)
29 November 2005
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Aşga v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 8 November 2005,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 67240/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Mehmet Aşga (“the applicant”) on 15 November 2000.
2. The applicant was represented by Mr Mahmut Akdoğan, a lawyer practising in Mersin. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
3. On 15 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1947 and lives in Mersin.
5. On 12 March 1996 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 17 December 1996, the Mersin Civil Court of First-instance awarded him additional compensation of 610,659,800 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 27 April 1994, the date of the transfer of the title-deeds.
7. On 2 November 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court of First-instance.
8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,860,240,000 (approximately 3,339 euros (EUR), including interest.
II. RELEVANT DOMESTIC LAW AND PRACTICE
9. The relevant domestic law and practice are set out in Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
10. The applicant complained that the additional compensation for expropriation, which he had obtained from the authorities after more than two years and seven months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. He relied on Article 1 of Protocol No. 1, which reads in so far as relevant as follows:
“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.”
11. The Government asked the Court to dismiss the application for failure to comply with the six-month time-limit under Article 35 § 1 of the Convention. For the purposes of that provision, time had started to run on 2 November 1998. However, the applicant had not lodged his application with the Court until 15 November 2000, which is more than two years after the final domestic decision.
12. The Court notes that the complaint before it concerns solely the authorities’ delay in paying the additional compensation and the damage sustained by the applicant as a result.
13. Payment was finally made by the authorities on 17 May 2000. By lodging his application with the Court on 15 November 2000, the applicant complied with the requirement set out in Article 35 § 1 of the Convention. The preliminary objection of the Government must therefore be dismissed.
14. The Court finds that, in the light of the principles it has established in its case-law (see, among other authorities, Akkuş, cited above) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible.
15. The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş, cited above, p. 1317).
16. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner a loss in addition to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and the protection of the right to the peaceful enjoyment of possessions.
17. Consequently, there has been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicant also complained under Article 6 § 1 of the Convention of the unreasonable length of the court proceedings.
19. The Government requested the Court to declare this complaint inadmissible for non-compliance with the six-month rule since the Court of Cassation upheld the first-instance court’s judgment on 2 November 1998, whereas the application was lodged with the Court on 15 November 2000, which is more than six months after the final decision in domestic law was given.
20. The Court reiterates that it has accepted in cases concerning length of proceedings the principle that enforcement of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see Di Pede v. Italy, judgment of 26 September 1996, Reports 1996-IV, pp. 1383-1384, §§ 20-24, and Zappia v. Italy, judgment of 26 September 1996, Reports 1996-IV, pp. 1410-1411, §§ 16-20).
21. The Court observes that the additional compensation awarded by the domestic courts was paid to the applicant on 17 May 2000. It therefore considers that the “determination” within the meaning of Article 6 ended on that date. The Court notes that the application was lodged on 15 November 2000, that is within six months of the payment.
22. In the light of the foregoing, the Court dismisses the Government’s preliminary objection.
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.
24. In the light of its findings with regard to Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 6 § 1 is necessary.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
25. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
26. The applicant sought compensation for pecuniary damage in the sum of 1,564 United States dollars (USD) (approximately EUR 1,265). He also claimed compensation for non-pecuniary damage of USD 5,000 (approximately EUR 4,043).
27. The Government contested his claims.
28. Using the same method of calculation as in the Akkuş judgment (cited above, p. 1311, §§ 35-36 and 39) and having regard to the relevant economic data, the Court awards the applicant EUR 1,265 for pecuniary damage.
29. The Court considers that the finding of a violation of Article 1 of Protocol No. 1 constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.
B. Costs and expenses
30. The applicant also claimed USD 275.70 (approximately EUR 223) for the costs and expenses incurred before the domestic courts and USD 42 (approximately EUR 35) for those incurred before the Court.
31. The Government contested those claims.
32. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 35 for the proceedings before the Court.
C. Default interest
33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;
3. Holds that it is unnecessary to examine separately the complaint under Article 6 § 1 of the Convention;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 1,265 (one thousand two hundred and sixty-five euros) in respect of pecuniary damage;
(ii) EUR 35 (thirty-five euros) in respect of costs and expenses;
(iii) any taxes that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P. Costa
Deputy Registrar President
AŞGA v. TURKEY JUDGMENT
AŞGA v. TURKEY JUDGMENT