ECHR

In the case of Balcı and Others v. Turkey,

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

          Mr     J.-P. Costa, President,
          Mr     A.B. Baka,
          Mr     R. Türmen,
          Mr     K. Jungwiert,
          Mr     M. Ugrekhelidze,
          Ms     D. Jočienė,
          Mr     D. Popović, judges,

and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 17 January 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 52642/99) 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 nine Turkish nationals, Mr Kemalettin Balcı, Mr Mahmut Dal, Mr Mahmut Ali Dal, Ms Sabahat Çalışkan, Ms Türkan Kurtarmaz, Mr Cemal Balcı, Ms Vildan Elmas, Mr Sefer Dal and Ms Zeynep Çağlayan (“the applicants”) on 19 August 1999.

2. The applicants were represented by Mr Orhan Aksoy, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3. On 14 June 2004 the Court decided to communicate the application to the Government. In a letter of 17 June 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1937, 1921, 1963, 1929, 1945, 1926, 1943, 1948 and 1950 respectively and live in Gebze.

5. In 1996 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated nineteen plots of land belonging to the applicants. A committee of experts assessed the value of the plots and the relevant amount was paid to the applicants when the expropriation took place.

6. On 5 November 1996 the applicants brought three separate actions for compensation before the Gebze Civil Court of First-instance.

7. In order to assess the real value of the land, the court ordered on-site inspections and expert reports. Primarily, the experts worked on the classification of the plots since the value of urbanised land (arsa) was higher than rural land (arazi). In this context, the experts observed that the plots were not reserved for habitation under any urban plan (imar planı) of the Municipality or the Ministry of Public Works and Settlement; they were not situated within residential areas; and there was no annotation in the land registry that these plots were to be used for tourism purposes. Instead, the plots were classified as “fields” in the Land Registry. As a result of the on-site inspections and their findings, the experts decided that the plots should be classified as rural land. They therefore calculated the value of the plots on that basis.

8. In their written submissions the applicants contested the expert reports. They submitted an expert report dated 5 March 1998 which concluded that the land in question should have been considered urbanised.

9. After taking into consideration three expert reports for each case, the Gebze Civil Court of First-instance rejected the applicants’ objections in respect of the nature of the land.

10. On 15 September 1998, 13 March 1998 and 4 May 1998, the court issued three decisions and awarded the applicants the below-mentioned amounts:

SETS OF PROCEEDINGS BEFORE THE FIRST-INSTANCE COURT

DATES OF DECISIONS

AWARDED AMOUNTS

(In Turkish liras)

FIRST SET OF PROCEEDINGS

15.09.1998

55,890,205,584 (approximately 203,215 dollars (USD))

SECOND SET OF PROCEEDINGS

13.03.1998

1,145,114,047 (approximately 4,864 dollars (USD))

THIRD SET OF PROCEEDINGS

04.05.1998

1,647,851,066 (approximately 6,582 dollars (USD))

11. On 2 March 1999 the Court of Cassation upheld these decisions.

12. On 14 May 1999 the Court of Cassation rejected the applicants’ requests for rectification.

13. Three sets of enforcement proceedings were initiated before the Execution Offices.

14. At the end of the enforcement proceedings, the amounts indicated below were paid to the applicants by the Kocaeli Provincial Private Administration Office on the dates mentioned:

SETS OF EXECUTION PROCEEDINGS BEFORE THE ENFORCEMENT OFFICE

DATES OF PAYMENT

AMOUNT OF PAYMENTS

(In Turkish liras)

FIRST SET OF EXECUTION PROCEEDINGS

26.04.2000

24.07.2000

25.01.2001

49,799,396,800

40,000,000,000

70,748,281,000

SECOND SET OF EXECUTION PROCEEDINGS

28.03.2000

2,831,543,100

THIRD SET OF EXECUTION PROCEEDINGS

28.03.2000

4,091,759,000

II. RELEVANT DOMESTIC LAW AND PRACTICE

15. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

16. The applicants contended, under Article 1 Protocol No.1, that the authorities had delayed paying them the additional compensation and that, at a time when the annual rate of inflation in Turkey had been very high, they had been paid insufficient interest. They complained that the initial amount of compensation determined by the committee of experts was too low. Finally, they alleged that the domestic court erred in its conclusion that the character of the expropriated land was rural. The applicants relied on Article 1 of Protocol No. 1, which reads in so far as relevant as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

A. Complaint concerning the authorities’ delay in paying the applicants the additional compensation

1. Admissibility

17. The Government maintained that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, since they had failed to make proper use of the remedy available to them under Article 105 of the Code of Obligations. Under that provision, they would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation if they had established that the losses exceeded the amount of default interest.

18. The Court observes that it dismissed a similar preliminary objection in the case of Aka v. Turkey (cited above, pp. 2678-79, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection.

19. It finds that, in the light of the principles it has established in its case-law (see, among other authorities, see Aka, cited above) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible.

2. Merits

20. The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Aka, cited above, p. 2682, §§ 50-51).

21. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority, and caused the owners a loss in addition to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicants have had to bear an individual and excessive burden which has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.

22. Consequently, there has been a violation of Article 1 of Protocol No. 1.

B. Complaint concerning the initial amount of compensation determined by the committee of experts, as well as the classification of the plots as rural land by the domestic courts

23. The Court considers that these complaints should be examined under Article 6 § 1 of the Convention.

24. The Government disputed the applicants’ claims and requested the Court to declare the application inadmissible for an abuse of the right to petition. The Government argued that Article 6 § 1 was inapplicable, ratione materiae, to the proceedings concerning the amendment of a zoning plan, since the proceedings did not determine the applicants’ civil rights, within the meaning of Article 6 § 1 of the Convention.

25. The Court does not consider it necessary to examine the questions of abuse or compatibility, as the application is anyway manifestly ill-founded for the following reasons:

26. The Court reiterates that the establishment of the facts and the assessment of the evidence are primarily matters for the domestic courts, and that the Court’s supervisory jurisdiction is limited to ensuring that the applicants’ Convention rights have not been breached (see, among many others, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I).

27. The Court notes that the experts assessed the nature of the plots by examining many different elements, such as the land registry records, the location of the plots and the local zoning plans. The Gebze Civil Court of First-instance examined three expert reports on each plot of land and determined their planning classification. Having regard to the facts and documents submitted by the applicants, the Court concludes that there is nothing to indicate that the assessment of the evidence was arbitrary or the proceedings otherwise unfair under Article 6 of the Convention.

28. In the light of the above considerations, the Court concludes that the complaints under Article 6 § 1 are to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. 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 and non-pecuniary damage

30. The applicants sought compensation for pecuniary damage in the sum of 6,417,928 United States dollars (USD) (approximately EUR 5,269,667).

31. The Government contested this claim.

32. Using the same method of calculation as in the Aka judgment (cited above, pp. 2683-84, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicants, jointly, EUR 523,573 for pecuniary damage.

B. Costs and expenses

33. The applicants also requested compensation for the costs and expenses incurred before the Court without specifying an amount.

34. The Government also contested this claim.

35. Making its own estimate based on the information available, the Court considers it reasonable to award the applicants the sum of EUR 1,000 under this head.

C. Default interest

36. 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

1. Declares the complaint concerning the alleged violation of Article 1 of Protocol No. 1 admissible;

2. Declares the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;

4. 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 New Turkish liras at the rate applicable at the date of settlement:

(i) EUR 523,573 (five hundred and twenty-three thousand five hundred and seventy-three euros) in respect of pecuniary damage;

(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses;

(iii) any taxes that may be chargeable on the above amounts;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa
Registrar President