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SECOND SECTION
CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY
(Application no. 48983/99)
JUDGMENT
STRASBOURG
26 September 2006
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 Mürvet Fidan and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa,
President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mrs S. Naismith,
Deputy Section Registrar,
Having deliberated in private on 5 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 48983/99)
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 five Turkish nationals,
Mürvet Fidan, Murat Fidan, Hikmet Fidan, Zehra Fidan and Elif
Özbilge (“the applicants”).
- The applicants were represented by Mr Refik Timuçin
Bektaş, a lawyer practising in Ankara.
- On 26 October 2004 the Court declared the application
partly inadmissible and decided to communicate the following
complaints to the respondent Government:
the
national authorities' delay in paying additional compensation for
expropriation and damage sustained by the applicants as a result of
the low interest rate applied to State debts, despite the high
inflation in Turkey;
the
length of the proceedings and the exceptional situation which was
favourable to the State as a result of the difference between the
rate of interest payable on unpaid debts owed to the State
and the rate of interest on debts owed by the State at the
material time; and
the
fact that the latter were not subject to enforcement procedures,
unlike the former.
- In a letter of 28 October 2004, the Court informed the
parties that, in accordance with Article 29 §§ 1 and 3 of
the Convention, it would decide on both the admissibility and merits
of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- All of the applicants live in Baskil, Turkey.
- On 19 July 1993 each of them brought separate actions
before the Baskil Civil Court against the National Water Board. They
alleged that their plots of land were illegally seized by the
administration for a dam construction without any payment, and
requested compensation.
- On 18 November 1993 the court ruled that the cases
should be characterised as compensation claims arising from de
facto expropriations rather than claims for illegal seizures. The
court established that a committee of experts had assessed the value
of the expropriated land in advance and that the authorities had paid
the resulting amounts to the owners registered in the local land
registry. The court ordered the administration to pay the applicants
an amount of increased compensation, plus interest at the statutory
rate, starting from 1986 when the land was submerged in the waters of
the dam.
- On 6 October 1994 the Court of Cassation quashed these
judgments, holding that the cases could not be characterised as
compensation claims arising from expropriation. Upon the applicants'
request, however, the Court of Cassation reversed its decision and
held, on 10 March 1995, that the cases could in fact be characterised
as compensation claims arising from expropriation. It proceeded to
quash the judgments of the first-instance court only in respect of
the date from which the statutory rate of interest began to run.
- By decisions of 21 December 1995 and 25 January 1986,
the Baskil Civil Court ordered the administration to pay the
applicants a certain amount of compensation, plus interest running
from 1986, despite the earlier rulings of the Court of Cassation
regarding the starting date from which interest was to be calculated.
- On 20 November 1996 the Plenary Court of Cassation
quashed the judgments of the Baskil Civil Court. The same court
rejected the applicants' rectification request on 2 May 1997.
- On 9 October 1997 the Baskil Civil Court ordered the
administration to pay the applicants 315,650,000, 297,439,800,
265,571,250, 404,680,000 and 708,190,000 Turkish liras (TRL)
respectively, plus interest at the statutory rate running from 19
August 1993, the date on which the land was transferred to the
National Water Board.
- On 17 March 1998 the Court of Cassation upheld these
judgments. On 2 April 1998 the Court of Cassation's rulings were
served on the applicants.
- On 9 December 1998 the administration paid
TRL 934,027,000 to Ms Mürvet Fidan, 884,579,000 TRL to Mr
Murat Fidan, TRL 790,746,000 to Mr Hikmet Fidan,
TRL 1,190,092,000 to Ms Zehra Fidan and TRL 2,041,230,000
to Ms Elif Özbilge.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice are set out in
the Akkuş v. Turkey judgment of 9 July
1997 (Reports of Judgments and Decisions 1997 IV).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The applicants complained that the additional
compensation for expropriation, which they had obtained from the
authorities only by December 1998, had fallen in value, since the
statutory rate of interest had not kept pace with the high rate of
inflation in Turkey. They relied on Article 1 of Protocol No. 1,
which reads insofar 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.”
A. Admissibility
- The Government did not submit any preliminary
objections concerning this complaint.
- The Court notes that, in the light of the principles
it has established in its case-law (see, among other authorities,
Akkuş v. Turkey, 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.
B. Merits
- 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. 2682, §§
50-51).
- 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 owners a loss additional 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 applicants have 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.
- Consequently, there has been a violation of Article 1
of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicants also complained under Article 6 §
1 of the Convention of the unreasonable length of the court
proceedings.
A. Admissibility
- The Government argued that the applicants had failed
to exhaust domestic remedies, as required by Article 35 § 1 of
the Convention, since they had not, at any stage of the proceedings,
claimed that the length of the proceedings had exceeded the
“reasonable time” limit.
- The Court notes that, even if the applicants had
complained about the length of proceedings before the domestic
courts, they would not have been afforded adequate redress for that
grievance. Thus, it dismisses the Government's preliminary objection.
- 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.
B. Merits
- In the light of its findings with regard to Article 1
of Protocol No. 1 (paragraph 20 above), the Court does not
consider that a separate examination of the merits of the case under
Article 6 § 1 is necessary.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly, the applicants complained under Article 14, in
conjunction with Article 1 of Protocol No. 1, of the difference
between the rate of interest payable on debts owed to the
State and the rate of interest payable on debts owed by the
State at the material time, and of the fact the latter were not
subject to enforcement procedures.
Admissibility
- The Court recalls that Article 14 is designed to
safeguard individuals, or groups of individuals, placed in comparable
situations, from all discrimination in the enjoyment of the rights
and freedoms set forth in the Convention and the Protocols (see
National Union of Belgian Police v. Belgium, judgment of
27 October 1975, Series A no. 19, p. 15, § 44). In other words,
this Article affords protection against discrimination “among
persons in relevantly similar situations” (see Fredin v.
Sweden (no. 1), judgment of 18 February 1991, Series A no. 192,
p. 15, § 60).
- The applicants' complaint relates to a difference in
treatment of the State and individuals in the context of their
respective debts. However, the State and individuals cannot be
considered to be “similarly situated persons”. Moreover,
the applicants did not claim that the State discriminated against
them vis-à-vis other individuals. The complaint therefore
falls outside the scope of Article 14 and must be rejected as being
incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 35 §§ 3 and 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
- The applicants sought compensation for pecuniary
damage only. However they left the amount of compensation to the
Court's discretion.
- The Government made no observations on this point.
- Using the same method of calculation as in the Akkuş
judgment (cited above, pp. 2683-84, §§ 55-56) and having
regard to the relevant economic data, the Court awards the applicants
a total of 1,762 euros (EUR) for pecuniary damage, as follows:
- EUR 255 to Ms Mürvet Fidan;
- EUR 209 to Mr Murat Fidan;
- EUR 196 to Mr Hikmet Fidan;
- EUR 349 to Ms Zehra Fidan; and
- EUR 753 to Ms Elif Özbilge.
B. Costs and expenses
- The applicants also requested the costs and expenses
incurred before the Court and left the amount at the Court's
discretion.
- The Government made no observations on this point.
- Making its own estimate based on the information
available, the Court considers it reasonable to
award the applicants, jointly, the sum of EUR 500 under this
head.
C. Default interest
- 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
- Declares the complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds that it is unnecessary to examine the
merits of the complaint under Article 6 § 1 of the Convention
separately;
- Holds
(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 sums, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) in respect of pecuniary damage
- EUR 255 (two hundred and fifty-five euros) to Ms Mürvet Fidan;
- EUR 209 (two hundred and nine euros) to Mr Murat Fidan;
- EUR 196 (one hundred and ninety-six euros) to Mr Hikmet Fidan;
- EUR 349 (three hundred and forty-nine euros) to Ms Zehra Fidan;
- EUR 753 (seven hundred and fifty-three euros) to Ms Elif Özbilge;
(ii) EUR
500 (five hundred euros) to the applicants, jointly, in respect of
costs and expenses;
(iii) plus
any taxes that may be chargeable at 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.
Done in English, and notified in writing on 26 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P. Costa
Deputy Registrar President
