BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF İŞCAN v. TURKEY
(Application
no. 10450/08)
JUDGMENT
STRASBOURG
3 November
2011
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 İşcan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de Albuquerque,
judges,
and
Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10450/08) 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 a Turkish national, Mr Hatem İşcan
(“the applicant”), on 15 January 2008. The applicant was
represented by Mr A.F. Demirkan, a lawyer practising in Bursa. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
12 June 2009 the President of the
Second Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Bursa.
- In
2004 the General Directorate of Highways seized a plot of land
belonging to the applicant without any formal expropriation, for the
construction of a highway. The applicant brought an action before the
Karacabey Civil Court to obtain compensation for the de facto
expropriation of his property. He requested 5,500 Turkish liras (TRY)
as compensation from the court and reserved his right to increase
this claim in due course.
- On
29 December 2005 the Karacabey Civil Court awarded the applicant TRY
5,500 as compensation for the de facto expropriation of his
land, as requested, plus interest. The applicant initiated execution
proceedings before the Bursa Execution Office to obtain that amount
(file no. 2006/2199).
- On
29 May 2006 the Court of Cassation upheld the judgment of the
first-instance court.
- The
applicant subsequently brought an additional action (“ek
dava”) before the Karacabey Civil Court to obtain further
compensation for his land in the light of the expert report obtained
during the previous proceedings, which had valued the land at a rate
higher than that initially requested by him.
- On
2 November 2006 the Karacabey Civil Court awarded the applicant TRY
561,050.75, plus interest. The applicant initiated another set of
execution proceedings before the Bursa Execution Office to obtain the
amount awarded (file no. 2009/2815).
- On
13 March 2007 the Court of Cassation upheld the judgment of the
Karacabey Civil Court.
- On
16 January 2009 the administration paid TRY 9,410.32 to file
no. 2006/2199 before the Bursa Execution Office in respect of
the debt arising from the initial action.
- Subsequently,
on 19 March 2009 they paid TRY 789,091.92 to file no. 2009/2815
before the Bursa Execution Office in respect of the debt under the
additional action. According to the information provided by the
applicant, there has been no outstanding debt in the execution files.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the authorities’ prolonged failure to
fully comply with the binding and enforceable judgments in his favour
violated his right to a court under Article 6 of the Convention and
his right to the peaceful enjoyment of his possessions under Article
1 of Protocol No. 1.
- The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and are
not inadmissible on any other grounds. They must therefore be
declared admissible.
- The
Court observes that even though the authorities discharged the final
payment on 19 March 2009 of the debt
arising from Karacabey Civil Court’ s judgments, the Government
failed to make any submissions which would justify the delay of
thirty two months
in the enforcement of the judgments in the applicant’s
favour.
- The
Court notes that it has frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to those raised in the present case (see, for
instance, Burdov v. Russia, no. 59498/00, §§
34-42, ECHR 2002-III; Kaçar and Others v. Turkey,
nos. 38323/04, 38379/04, 38389/04, 38403/04, 38423/04, 38510/04,
38513/04, and 38522/04, §§ 22-25, 22 July 2008; Burdov
v. Russia (no. 2), no. 33509/04, §§ 65-88, 15
January 2009). There are no arguments in the case capable of
persuading the Court to reach a different conclusion.
- Accordingly,
the Court finds that there has been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 on account of the
authorities’ failure to duly execute the judgments of Karacabey
Civil Court.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
- The
applicant claimed TRY 200,000 (approximately 95,000 euros (EUR)) in
respect of pecuniary damage, corresponding to the potential rental
income he had been deprived of since the de facto
expropriation of his land. As regards non-pecuniary damage, the
applicant claimed that he had suffered distress and hardship on
account of the non-payment of the domestic judgment debts and
requested compensation for this in an amount to be determined by the
Court. As for costs and expenses, the applicant requested the Court
to make an award for the work conducted by his lawyers in the present
case, leaving the amount to be determined by the Court.
- The
Government contested these claims.
- The
Court notes that it has found a violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 by reason of the
delayed execution of final judicial decisions.
- The
Court further notes that where a domestic judgment in an applicant’s
favour was executed, the Court does not make any award in respect of
the initial judgment debt. In this respect, the Court does not
discern any causal link between the violation found and the pecuniary
damage alleged; it, therefore, rejects this claim.
- On
the other hand, the Court considers that the applicant must have
suffered some non-pecuniary damage which cannot be sufficiently
compensated by the finding of a violation alone. Consequently, taking
into account the circumstances of the case, in particular the period
of delay in the enforcement of domestic court judgments, and making
its assessment on an equitable basis, the Court awards the applicant
EUR 3,000 as non-pecuniary damage.
- As
for costs and expenses, the Court notes that according to its
case law, an applicant is entitled to reimbursement of his or
her 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 lack of any
quantified submissions, the Court makes no award under this head.
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 application
admissible;
- 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 the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention; EUR 3,000 (three 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens Registrar President
