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SECOND
SECTION
CASE OF FIRAT AND OTHERS v. TURKEY
(Application
no. 17597/03)
JUDGMENT
STRASBOURG
6
October 2009
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 Fırat and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17597/03) 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 six Turkish nationals, Ms Zeynep Fırat,
Mr Ahmet Fırat, Ms Hanım Fırat, Mr Ömer
Fırat, Mr Osman Fırat and Ms Ayşe Özdemir
(Fırat) (“the applicants”), on 28 April 2003.
- The
applicants were represented by Mr M. Birlik, a lawyer practising in
Şanlıurfa. The Turkish Government (“the Government”)
were represented by their Agent.
- On
14 September 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1926, 1959, 1951, 1962, 1963 and 1966
respectively and live in Gaziantep.
- In
1999 the Ministry of Energy and Natural Resources expropriated five
plots of land belonging to the applicants (plots nos. 501, 561, 562,
606 and 608) in the Aşağıçardak village in
Nizip for the construction of the Birecik Dam.
- Following
the applicants' requests for increased compensation, the Nizip Civil
Court of First Instance awarded them additional compensation plus
interest at the statutory rate. The applicants appealed and the Court
of Cassation upheld the judgments of the first instance court.
- In
November and December 2002 the administration made partial payments
to the applicants in additional compensation. On 31 May 2007 the
Ministry made further payments to discharge their outstanding debts.
The details regarding the proceedings and payments are indicated in
the table below:
|
PLOT No.
|
DATE OF JUDGMENT OF THE
NİZİP CIVIL COURT OF FIRST INSTANCE
|
DATE OF FINAL DECISION BY
THE COURT OF CASSATION
|
AMOUNT
OF ADDITIONAL COMPENSATION
(interests and legal costs not
included)
(in
Turkish liras (TRL))
|
AMOUNT OF FIRST PAYMENT
(made in November and December 2002)
(in
TRL)
|
AMOUNT OF SECOND PAYMENT
(made on 31 May 2007)
(in
Turkish liras (TRY))
|
|
501
|
30.12.1999
|
22.5.2000
|
1,490,114,475
|
4,459,615,014
|
2,483
|
|
561
|
30.12.1999
|
9.10.2000
|
2,123,437,500
|
6,443,401,220
|
3,269
|
|
562
|
12.4.2000
|
6.11.2000
|
4,114,327,200
|
12,420,060,000
|
6,533
|
|
606
|
30.12.1999
|
26.6.2000
|
6,185,875,000
|
11,681,545,946
|
6,105
|
|
608
|
30.12.1999
|
22.5.2000
|
1,230,027,343
|
3,643,790,000
|
1,094
|
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the cases of Akkuş
v. Turkey (9 July 1997, Reports of Judgments and Decisions
1997 IV), Aka v. Turkey (23 September 1998, Reports
1998 VI); Gaganuş and Others v. Turkey (no.
39335/98, §§ 15-19, 5 June 2001), and Ak v. Turkey
(no. 27150/02, §§ 11-13, 31 July 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that they had been paid insufficient interest
on additional compensation received following the expropriation of
their lands, which had the effect of reducing the value of their
compensation through the effect of inflation, and that the
authorities had delayed in paying them the relevant amounts.
A. Admissibility
- The
Government submitted that the applicants had not suffered any
material loss on account of the interest rates applied, as they
alleged, since the payments effected on 31 May 2007 had been made
with the highest interest rates in accordance with Article 46 of the
Constitution of Turkey (“the Constitution”). The
applicants, therefore, lacked victim status. The Government further
contended that the applicants had not exhausted domestic remedies as
required by Article 35 § 1 of the Convention. They argued in
this regard that, had the applicants invoked Article 46 of the
Constitution when claiming their monies from the authorities, the
payments would have been effected with less delay as the
administration gave priority to claims based on Article 46 of the
Constitution.
- The
applicants maintained their allegations.
- The
Court considers in the first place that it is not necessary to
examine the Government's first objection regarding the lack of victim
status as the complaint concerning the insufficiency of interest
rates is inadmissible in any event.
- The
Court notes in this regard that, according to the calculation method
adopted in the case of Akkuş (cited above, §§
35, 36 and 39), the applicants appear to have received more than 95%
of the full compensation owed to them for all the relevant plots on
the date of the second payment. In the light of the Court's findings
in Arabacı v. Turkey ((dec.), no. 65714/01, 7 March
2002), the Court is of the opinion that the total amount of money
paid to the applicants was satisfactory and that the applicants did
not sustain separate loss in addition to the loss deriving from the
expropriation of their lands on account of the low interest rates
(see, among others, Akkuş, cited above, § 30, and
Gül and Others v. Turkey (dec.), no. 44715/98, 18 March
2004).
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- As
regards the Government's second objection concerning non exhaustion
of domestic remedies in relation to the delay encountered in the
payment of compensation, the Court recalls that a person who has
obtained an enforceable judgment against the State as a result of
successful litigation cannot be required to resort to additional
remedies to have it executed (see Metaxas v. Greece, no.
8415/02, § 19, 27 May 2004, and Arat and Others v. Turkey,
nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04, 42908/04,
42909/04 and 42910/04, § 19, 13 January 2009). The Court
consequently dismisses the Government's objection on this matter.
- The
Court notes that the complaint regarding delayed payment 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. It must therefore be declared admissible.
B. Merits
- The
Court observes that the authorities effected the first payments two
to two and a half years after the Court of Cassation's decisions and
that the second payments were made almost seven years after the said
decisions. The Court notes that it has already examined similar cases
on previous occasions and has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 (see, for
instance, Burdov v. Russia, no. 59498/00, §§
34-42, ECHR 2002-III, and M. Kaplan v. Turkey,
no. 29016/04, §§ 16-19, 9 December 2008). The Court
considers that there is nothing to warrant a departure from its
findings in the previous cases.
- In
the light of the foregoing, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 on account of the delayed payment of additional
expropriation compensation.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages, costs and expenses
- The
applicants claimed, jointly, 15,000 euros (EUR) in respect of
pecuniary damage and EUR 35,000 in respect of non-pecuniary damage.
They also claimed EUR 3,000 for costs and expenses. They did not
submit any documents to substantiate their claims.
- The
Government submitted that no compensation should be awarded to the
applicants as they had been sufficiently compensated by the payments
made by the authorities.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, ruling on an equitable basis, it awards each of the
applicants EUR 1,000 in respect of non pecuniary damage.
- As
for costs and expenses, the Court makes no award under this head as
the applicants have failed to substantiate their claims.
B. 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 complaint concerning the delayed
payment of additional expropriation compensation under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non pecuniary damage, to be converted into Turkish liras at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
