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 YILDIRIR v. TURKEY
(Application
no. 21482/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
5 April
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 Yıldırır v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Ireneu
Cabral Barreto,
Dragoljub Popović,
Giorgio
Malinverni,
András Sajó,
Işıl
Karakaş, judges,
and
Stanley Naismith,
Section Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21482/03) 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 a Turkish national, Mr Zekeriye Yıldırır
(“the applicant”), on 21 May 2003.
- In
a judgment delivered on 24 November 2009 (“the principal
judgment”), the Court held that the failure to award any
compensation to the applicant upset, to his detriment, the fair
balance which has to be struck between the protection of property and
the requirements of the general interest, and that there has
accordingly been a violation of Article 1 of Protocol No. 1 to the
Convention.
- Under
Article 41 of the Convention the applicant sought just satisfaction
for the finding of a violation of his rights under Article 1 of
Protocol No. 1.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., p. 9, § 50, and
point 3 of the operative provisions).
- In
the absence of a referral request by the Government, within the
meaning of Article 43 § 1 the principal judgment became final on
24 February 2010.
- The
applicant and the Government each submitted observations, on 18 March
2010 and 24 June 2010 respectively.
THE LAW
- 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 damage
1. The parties’ submissions
(a) The applicant
- The
applicant reiterated his claim for just satisfaction and asked the
Court to award him 57,977 Turkish liras (TRL) (approximately
29,200 euros (EUR)) in respect of pecuniary damage. In this
connection, the applicant provided an expert report dated 2 June
2003, which had been approved by a declaratory judgment (tespit
davası kararı) of the Ankara Magistrates’ Court.
- The
applicant asked the Court to add interest to the aforementioned
amounts, running from the date of introduction of his application to
the Court.
(b) The Government
- The
Government submitted that the applicant’s just satisfaction
claims should be dismissed, since he had failed to submit fresh
claims following the delivery of the principal judgment. They also
maintained that the amounts claimed by the applicant had never been
brought before the domestic courts and that therefore they should be
rejected by the Court.
- The
Government contended in the alternative that the amounts claimed by
the applicant were excessive. They noted that while the applicant’s
property had been valued at TRL 57,977 by an expert in 2003, its
location was a significant factor decreasing its value. In this
connection, an assessment report prepared by a civil servant working
at the Kızılcahamam Municipality stated that the damage
suffered by the applicant in 2003 was actually TRL 42,588.9.
Furthermore, the buildings which had been demolished by the
administration had been situated in a protection zone in the vicinity
of the Kurtboğazı Dam, which provided drinking water to
Ankara. Accordingly, if the applicant wished to sell the property in
question to a third person he would not be able to sell it at current
market value.
- The
Government further submitted an assessment report dated 6 May
2010 issued by the General Directorate of National Real Estate
attached to the Ministry of Finance (Maliye Bakanlığı
Milli Emlak Genel Müdürlüğü) (“the
General Directorate”). The General Directorate had
re-calculated the value of the applicant’s property in question
by updating the 2003 expert report submitted by the applicant, and
had found that the current value of the property was TRL 100,071.87.
The Government noted that the General Directorate had used objective
criteria and that the amount found was the current maximum value of
the property in question, had it been possible to sell it today.
2. The Court’s assessment
- As
regards the Government’s submission that the applicant failed
to submit fresh claims for just satisfaction following the adoption
of the principal judgment, the Court notes that by a letter dated 18
March 2010 the applicant reiterated his claims for just satisfaction
and that this letter was transmitted to the Government by the
Registry’s letter dated 13 July 2010. Accordingly, the Court
rejects the Government’s allegations in this subject.
- As
to the Government’s argument that the applicant failed to raise
his just satisfaction claims before the domestic courts, the Court
reiterates that it has already dealt with this question in the
principal judgment when examining the Government’s plea on
non-exhaustion and has rejected it (see pp. 5 6, §§
29-35 of the principal judgment). It follows that this argument must
also be dismissed.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to
restore, as far as possible, the situation existing before the breach
(see Brumărescu v. Romania (just satisfaction) [GC],
no. 28342/95, § 19, ECHR 2001 I).
- The
Contracting States parties to a case are in principle free to choose
the means whereby they will comply with a judgment in which the Court
has found a breach. This discretion as to the manner of execution of
a judgment reflects the freedom of choice attaching to the primary
obligation of the Contracting States under Article 1 of the
Convention to secure the rights and freedoms guaranteed. If the
nature of the breach allows restitutio in integrum, it is for
the respondent State to implement it. If however national law does
not allow, or allows only partial, reparation to be made for the
consequences of the breach, Article 41 empowers the Court to afford
the injured party such satisfaction as appears to it to be
appropriate (see Papamichalopoulos and Others v. Greece
(Article 50), 31 October 1995, § 34, Series A no. 330-B).
- In
the principal judgment the Court found that the lack of any domestic
remedy to afford the applicant redress for the loss of his property
had impaired the full enjoyment of his right to property (see p. 9, §
45 of the principal judgment). Thus, in the circumstances of the
present case, an award of compensation for the pecuniary loss in
question seems to be the most appropriate just satisfaction for the
applicant.
- In
this context, the Court reiterates that when the basis of the
violation found is the lack of any compensation, rather than the
inherent illegality of the taking, the compensation need not
necessarily reflect the full value of the property (see I.R.S. and
Others v. Turkey (just satisfaction), no. 26338/95, §§
23-24, 31 May 2005; Scordino v. Italy (no. 1) [GC],
no. 36813/97, §§ 254-259, ECHR 2006-V; and Stornaiuolo
v. Italy, no. 52980/99, §§ 82-91, 8 August
2006).
- In
such cases, in determining the amount of adequate compensation, the
Court must base itself on the criteria laid down in its judgments
regarding Article 1 of Protocol No. 1 and according to which, without
payment of an amount reasonably related to its value, deprivation of
property would normally constitute a disproportionate interference
which could not be considered justifiable under Article 1 of Protocol
No. 1. The provision did not, however, guarantee a right to full
compensation in all circumstances since legitimate objectives of
“public interest” may call for less than reimbursement of
the full market value (see The Holy Monasteries v. Greece,
9 December 1994, § 71, Series A no. 301-A, and Jahn
and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, § 94, ECHR 2005-VI).
- In
view of the above, the Court notes that the applicant claimed
TRL 57,977 (approximately EUR 29,000), based on an assessment
report that was prepared in 2003, plus interest, to obtain the
current value of the property that was demolished by the authorities.
In this connection, the Government furnished a re-evaluation report
which indicated that the current maximum value of the property in
question was TRL 100,071.87 (approximately EUR 50,400) (see
paragraph 12 above).
- In
view of the above, the Court deems it appropriate to fix a lump sum
that would correspond to the applicant’s legitimate
expectations of obtaining compensation for the approximate value of
his house that was demolished by the authorities. It thus awards the
applicant EUR 50,000 in respect of pecuniary damage.
B. Non-pecuniary damage
- The
applicant claimed TRL 100,000 (approximately EUR 46,500) for
non-pecuniary damage for the stress and anxiety suffered by his
family.
- The
Government stated that the finding of a violation was sufficient just
satisfaction in the circumstances of the case.
- The
Court considers that the applicant must have experienced frustration
and stress having regard to the nature of the breach. It therefore
awards the applicant EUR 2,500 in respect of non-pecuniary damage
(see Schembri and Others v. Malta (just satisfaction), no.
42583/06, § 22, 28 September 2010).
C. Costs and expenses
- The
applicant did not submit any claim in respect of costs and expenses.
- The
Government asked the Court not to make an award, given the
applicant’s failure to submit any claim under this title.
- In
the absence of any quantified claim, the Court makes no award under
this head (Rule 60 of the Rules of Court).
D. 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
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Turkish liras at the rate applicable on the date of
settlement:
(i) EUR
50,000 (fifty thousand euros), plus any tax that may be chargeable,
in respect of pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to the applicant, for 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge Sajó
is annexed to this judgment.
S.H.N.
F.T.
CONCURRING OPINION OF JUDGE SAJÓ
In
the present case, the Court deems it appropriate to fix a lump sum
that would correspond to the applicant’s legitimate
expectations of obtaining compensation for the approximate value of
his house that was demolished by the authorities. In granting a lump
sum, the Court is of the opinion that the applicant has no right to
full compensation, as the guarantee of a right to full compensation
in all circumstances does not necessarily apply since legitimate
objectives of “public interest” may call for less than
reimbursement of the full market value (see The Holy
Monasteries v. Greece, 9 December 1994, § 71,
Series A no. 301-A, and Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005-VI).
I
find that the conditions for applying compensation below the full
market value depend on very specific considerations which have to be
narrowly construed, being exceptions to the general rule of full
compensation. The existence of unique historical circumstances is
present in the cases cited. There is no specific reason given for the
approach taken by the Court, which grants the lump sum in view of the
above-cited jurisprudence. The applicant submitted an expert’s
report dated 2 June 2003, which had been approved by a declaratory
judgment (tespit davası kararı) of the Ankara
Magistrates’ Court. The Government submitted a re-calculation,
by updating the 2003 expert’s report submitted by the
applicant. Under these circumstances there is a clear basis on which
to determine the full value of the property at the time of the
expropriation, and inflation is properly taken care of. It is of
course very fortunate that the lump sum awarded equals the actual
loss; but it is very unfortunate that the impression is created that
the award does not reflect the full value, or that special
circumstances exist in the present case to allow a departure from
awarding full compensation.
