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SECOND
SECTION
CASE OF KALYONCU v. TURKEY
(Application
no. 41220/07)
JUDGMENT
STRASBOURG
3
February 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 Kalyoncu 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 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41220/07) 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 three Turkish nationals, Mr Süleyman
Kalyoncu, Mr Ali Kalyoncu and Mr Mustafa Kalyoncu (“the
applicants”), on 19 September 2007. The applicants were
represented by Mr Y. Demirci, E. Uslu and E. Günay,
lawyers practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent. On 30 January
2008 the President of the Second Section
decided to give notice of the application to the Government and to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicants owned 3,223 square metres of land near the coast in Rize
and a cafeteria situated thereon that measured 140 sq m. On 3 October
2006 the Rize Court of First Instance decided to annul the title to
104.36 sq m. of the land and to order the demolition of
17.35 sq m. of the cafeteria area on the ground that they were
situated on the coastline which could not be subject to private
ownership. On 12 March 2007 the Court of Cassation upheld the
decision.
THE LAW
- The
applicants complained that the authorities had deprived them of their
property without payment of compensation, in violation of Article 1
of Protocol No. 1. The Government contested that allegation.
- The
Court notes that it has already declared admissible similar cases
(see, in particular, Abacı v. Turkey, no. 33431/02, §§
11-18, 7 October 2008, and Turgut and Others v. Turkey, no.
1411/03, § 80, 8 July 2008) and has found violations of Article
1 of Protocol No. 1 in respect of the annulment of title acquired in
good faith but later restored to State ownership without compensation
being paid (see N.A. and Others v. Turkey,
no. 37451/97, §§ 36 43, ECHR 2005 X).
It further notes the absence of sample domestic judgments where
compensation has been awarded in similar situations. Accordingly the
Court holds that the application is admissible, there being no
grounds upon which to decide otherwise. As to the merits the Court
finds no reason to depart from the conclusions of the cases cited
above. Accordingly, it finds that there has been a violation of
Article 1 of Protocol No. 1.
- The
applicants claimed 100,000 euros (EUR) in respect of pecuniary damage
and EUR 30,000 in respect of non-pecuniary damage. They also claimed
EUR 4,000 in respect of the costs and expenses incurred before the
domestic courts as well as EUR 9,000 in respect of their lawyer’s
fees for the proceedings before both the Court and domestic courts.
In this respect they referred to a number of receipts that had been
issued by the domestic courts. The Government contested these claims,
arguing that they were unsubstantiated, speculative and excessive.
- As regards the applicants’ claim in respect of
non-pecuniary damage, the Court finds that, in the circumstances of
the present case, the finding of a violation constitutes sufficient
just satisfaction (see Doğrusöz and Aslan v. Turkey,
no. 1262/02, § 38, 30 May 2006). However, in view of the
comparable case-law and the partial nature of the expropriation of
the applicants’ property (cf. Terzioğlu
and Others v. Turkey, nos.
16858/05, 23953/05, 34841/05, 37166/05, 19638/06 and 17654/07, 16
December 2008 [not yet final]; Miçooğulları v.
Turkey, no. 75606/01, 10 May 2007; Kutluk and Others v.
Turkey, no. 1318/04, 3 June 2008), the Court awards the
applicants, jointly, EUR 10,000 for pecuniary damage and, on the
basis of the documents in its possession, EUR 3,500 in respect of
costs and expenses. The Court further 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 application admissible;
- Holds
that there has been a violation of Article 1 of Protocol No. 1;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants jointly, 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 Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
10,000 (ten thousand euros), plus any
tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
3,500 (three thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of
costs and expenses;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President
