Ismail COSAR v Turkey - 32487/04 [2011] ECHR 789 (3 May 2011)

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The European Court of Human Rights (Second Section), sitting on 3 May 2011 as a Chamber composed of:

Françoise Tulkens, President,
Danutė Jočienė,
David Thór Björgvinsson,
Giorgio Malinverni,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr İsmail Coşar, is a Turkish national who was born in 1942 and lives in Istanbul. He is represented before the Court by Mr A. Yum and Mr Y. Güneş, lawyers practising in Istanbul. The Turkish Government (“the Government”) are represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 5 October 1995 the Governorship of Istanbul expropriated a 204 sq. m plot of land belonging to the applicant (block no. 19, plot no. 7793), located in the Kocasinan Soğanlıbahçe region of Bahçelievler, Istanbul, to be used as a public school yard. It assessed the value of the land at 224,400,000 Turkish liras (TRL), that is, TRL 1,100,000 per sq. m.

On 14 February 1996 the administration sought to notify the applicant of the expropriation decision through a notary public. However, this notification did not reach the applicant as the service was made at the wrong address.

On 20 December 1999 the applicant’s lawyer obtained the expropriation decision from the Istanbul Sixteenth Notary Public in person and the expropriation was thus finalised.

On 19 January 2000, within the thirty-day prescription period stipulated in section 14 of the Expropriation Act (Law no. 2942), the applicant brought an action before the Bakırköy Civil Court for additional expropriation compensation. He requested TRL 3,855,600,000 in additional compensation, valuing the land at TRL 20,000,000 per sq. m, and reserved the right to increase this claim. He did not request payment of interest.

On 14 February 2000 the ownership of the plot of land was transferred to the administration in the title deed register.

On 16 February 2000 the administration paid the applicant the previously assessed amount of TRL 224,400,000 as compensation for expropriation.

On 26 December 2001 the committee of experts appointed by the Bakırköy Civil Court assessed the value of the land at TRL 70,000,000 per sq. m. This evaluation was made on the basis of the value of the land on 20 December 1999, the date on which the applicant’s lawyer was notified of the expropriation decision. The experts, however, noted that the compensation to be paid to the applicant at the end of the proceedings should be limited to his original claim in accordance with the relevant procedural rules.

On an unspecified date the applicant’s lawyer submitted a petition to the Bakırköy Civil Court, requesting that court, firstly, to apply interest on the amount of compensation to be awarded, and secondly to grant them additional time to bring an additional action (“ek dava”) to be able to claim an increased amount in compensation for the land.

At the hearing held on 28 March 2002 the applicant’s lawyer repeated his claim regarding the interest but did not bring up the request for an additional action. At the end of the hearing, the Bakırköy Civil Court declared that the request regarding the interest would be entertained. It did not, however, take any decision on the request regarding an additional action, which had been made out of time.

Given the considerable discrepancy between the experts’ evaluation and that of the administration, the court appointed another committee of experts to report on the value of the land. This new committee conducted an examination on 29 April 2002 and valued the land at TRL 149,500,000 per sq. m as on 20 December 1999. However, it was again noted that the additional compensation was to be limited to the applicant’s original claim.

On 24 May 2002 the Bakırköy Civil Court accepted the applicant’s claim in full and awarded him TRL 3,855,600,000 in additional compensation, plus interest at the statutory rate running from 20 January 2000. That court stated that although the value of the land at the relevant time had been assessed to be higher in the expert reports, it was bound by the applicant’s claim of TRL 3,855,600,000, and therefore could not award him a higher amount.

On an unspecified date, the applicant appealed against the judgment of the first instance court. He complained in particular that the value of his land had increased dramatically between 19 January 2000, the date when he had brought the case before the Bakırköy Civil Court, and 29 April 2002, the date when the second expert report had been obtained. In these circumstances, the insistence of the first-instance court on being bound by his initial claim had caused him significant financial loss. Having been obliged to bring his claim within the thirty-day prescription period, he could not possibly have foreseen such a radical increase in the value of his land.

On 3 June 2003 the Court of Cassation upheld the judgment of the Bakırköy Civil Court.

On 10 November 2003 the Court of Cassation rejected the applicant’s request for rectification of its previous decision. That decision was served on the applicant on 5 December 2003.

On 31 December 2003 the administration paid the applicant TRL 12,708,078,000 in additional compensation, including interest.

According to section 14 of the Expropriation Act (Law no. 2942 of 4 November 1983), the owner of an expropriated property may, within thirty days of notification of the expropriation decision, bring an action to challenge the amount of compensation assessed by the authorities.

According to Article 74 of the Code of Civil Procedure, the civil courts are bound by the claims of the parties and may not award a higher amount than requested.

The applicant complained under Article 1 of Protocol No. 1 that the additional compensation awarded by the Bakırköy Civil Court had not reflected the real value of his expropriated land.

The applicant claimed that the amount he had originally requested from the Bakırköy Civil Court as additional compensation when he first brought the case had been far below the real value of the land, as he had not been able to correctly estimate its market value within the thirty-day prescription period set under section 14 of the Expropriation Act. In the absence of conclusive information regarding the value of the land, he had also purposely kept the claim low in order to avoid paying unduly high court fees, which were calculated on the basis of the initial claim. The two expert reports submitted during the course of the proceedings, on the other hand, had shown that the value of the land had increased to an unforeseeable extent in the meantime, on account of high inflation rates. He had, however, been barred from increasing his claim in keeping with the increasing property prices on account of the rigid rule which dictated that the civil court was bound by his original claim. As a result, the amount of additional compensation he was awarded at the end of the proceedings was not remotely close to the actual value of the land he had lost, which was a blatant violation of his property rights.

The Government submitted that the applicant’s complaint should be declared inadmissible in view of the Court’s findings in the case of Akın and Others v. Turkey ((dec.), no. 27747/02, 29 January 2008). They argued in particular that according to the relevant domestic laws, the applicant was required to bring his claim for additional compensation, including any requests to increase or otherwise amend this claim, within the thirty-day prescription period set out in section 14 of the Expropriation Act. The domestic courts for their part were bound by law to limit the compensation to be awarded to the claim put forward by the applicant, regardless of any higher valuations subsequently made by court-appointed experts. In the absence of any attempts by the applicant to increase his initial compensation claim in compliance with the procedural requirements, the Bakırköy Civil Court had awarded that claim in full, together with statutory interest. There had therefore been no deprivation of his property rights within the meaning of Article 1 of Protocol No. 1.

The Court considers that it is not necessary to examine the Government’s objection in this respect, as the applicant’s complaint is in any event inadmissible for the reasons set out below.

The Court notes at the outset that the applicant, whose land was expropriated to be put to use as a public school yard, was awarded a certain amount of compensation that was paid to him when the expropriation took place. Arguing that the amount he had received had been inadequate, the applicant requested additional expropriation compensation. The Bakırköy Civil Court accordingly awarded him the additional compensation he had requested in full, plus statutory interest from the date of the lodging of the action. The additional amount he had requested, together with statutory interest, was thus paid to him on 31 December 2003.

The Court acknowledges that there may be circumstances in a given case which may diminish the adequacy of compensation awarded for expropriated land, such as monetary depreciation caused by rising inflation and the lapse of time. In such circumstances, the failure of the authorities to make a payment without reference to the various circumstances liable to reduce the land’s value may raise an issue under Article 1 of Protocol No. 1 (see, amongst many others, Akkuş v. Turkey, 9 July 1997, § 29, Reports of Judgments and Decisions 1997-IV). The same holds true for compensation claims made in contexts other than land expropriation (see Okçu v. Turkey, no. 39515/03, § 55, 21 July 2009).

The Court, however, notes that the scope of the present dispute is different from that in the aforementioned cases. It has already been established in the partial decision of 29 September 2009 that the applicant suffered no pecuniary loss on account of any delay in payment or due to the rate of interest applied to the payment. According to the applicant’s allegations, the loss in the instant case stems from unforeseeable changes that occurred in the value of the relevant land between the time he brought his case in January 2000 and the time it was valued by experts in December 2001 and April 2002.

The Court notes in this respect that the expert reports submitted to the Bakırköy Civil Court in 2001 and 2002 both assessed the value of the land as of 20 December 1999, that is, the date on which the applicant’s representative was notified of the expropriation decision, as opposed to the respective dates on which they were prepared. Bearing in mind that the applicant had brought his case for additional compensation before the Bakırköy Civil Court on 19 January 2000, that is, some thirty days after the experts’ valuation dates, his argument that he was not allowed to benefit from the increase in the value of his land established in the subsequent expert reports is groundless. The difference between the claim made by the applicant and the valuation of the experts therefore arises not from any increase in the value of the land that occurred over the years, which could not possibly have been foreseeable by the applicant, but from a discrepancy in the estimations made by the applicant and the experts regarding the value of the land in the immediate aftermath of the service of the expropriation decision. According to the information in the case file, this discrepancy is largely due to the applicant’s failure to obtain a more accurate assessment of the value of his land before bringing his case, for reasons unknown to the Court, and to his concern with paying lower court fees. In either case, the reduced amount of compensation he received at the end of the proceedings may not be attributed to the State in the present circumstances and thus does not raise an issue under Article 1 of Protocol No. 1.

In the light of the foregoing, the Court concludes that there does not appear to have been an infringement of the applicant’s property rights under Article 1 of Protocol No. 1 on account of the domestic courts’ refusal to award him a higher amount of additional compensation in line with the findings of the experts.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ismail COSAR v Turkey - 32487/04 [2011] ECHR 789 (3 May 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/789.html Cite as: [2011] ECHR 789