FOURTH
SECTION
CASE OF DOST AND OTHERS v.
(Application no. 45712/99)
JUDGMENT
FINAL
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 Dost and Others v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr R. Türmen,
Mr K. Traja,
Mr S. Pavlovschi,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr M. O’Boyle,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an application (no. 45712/99) 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 three Turkish nationals, Mr Adem Dost, Mr Þeker Dost and Mr Osman Cinel (“the applicants”) on 12 November 1998.
2. The applicants were
represented by Mr Ýbrahim Gemici,
a lawyer practising in
3. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were born
in 1956, 1954 and 1955 respectively and live in
5. In 1995 the Sakarya Governor’s office expropriated a plot of land
belonging to the applicants. A committee of experts assessed the value of the
plot of land and the relevant amount was paid to them when the expropriation
took place.
6. Following the applicants’ request for increased compensation, on 11 September 1997 the Sakarya Civil Court of First-instance awarded them an additional compensation of 865,267,950 Turkish liras (TRL)[1] plus interest at the statutory rate running from 12 December 1995, the date on which the title-deed to the land had been transferred to the Sakarya Governor’s Office. In the course of the proceedings, the court conducted on-site visits and requested three expert reports which concluded that the land in question was development land (arsa). In view of a judgment rendered by the Joint Civil Chambers of the Court of Cassation which ruled that the lands within the vicinity of the Sakarya organised industrial zone should be considered as agricultural lands, the court decided that it would not take the three expert reports into account. It therefore relied on a fourth expert report which served as a conciliation report for a calculation of the amount due to the applicants.
7. The applicants appealed against the judgment of the Sakarya Civil Court of First-instance. In their submissions, the applicants contested the court’s decision to take solely the last expert report into consideration.
8. On
9. On
10. On
II. RELEVANT DOMESTIC LAW AND
PRACTICE
11. The relevant domestic law
and practice are set out in the Aka v. Turkey
judgment of
THE LAW
12. The applicants complained
that the additional compensation for expropriation, which they had obtained
from the authorities only after two years and six months’ court proceedings,
had fallen in value, since the default interest payable had not kept pace with
the very high rate of inflation in Turkey. They relied on Article 1 of Protocol
No. 1, which reads 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.
The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”
A. Admissibility
13. The Court finds that, in the light of the principles it has established in its case-law (see, among other authorities, 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.
B. Merits
14. 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).
15. 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
owner a loss additional 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 that 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.
16. Consequently, there has
been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicants complained that they had been denied a fair hearing within a reasonable time. They invoked Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair... hearing within a reasonable
time by [a] ... tribunal...”
18. The applicants complained
that the proceedings before the domestic courts were long and thus in
contravention of the reasonable time requirement under Article 6 § 1 of the
Convention. They further alleged that they had been denied a fair trial because
the domestic courts had disregarded three expert reports and had taken into
account solely the fourth expert report which had qualified the land in
question as agricultural land and had awarded them an amount inferior than to
real value of the land.
19. The Government disputed the
applicants submissions and argued that the proceedings in question were fair
and in compliance with the reasonable time requirement laid down in Article 6 §
1.
A. Admissibility
20. The
Court notes that the complaint concerning the length of the proceedings is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any other
grounds.
21. As to the complaint
concerning the fairness of the proceedings, the Court points out that according
to the Court’s well-established case-law, the establishment of the facts and
the assessment of the evidence are primarily matters of 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).
22. That being so, in view of
a judgment rendered by the Joint Civil Chambers of the Court of
Cassation which ruled that the lands within the vicinity of the Sakarya organised industrial zone should be considered as
agricultural lands, the Sakarya Civil Court of
First-instance decided to disregard three expert reports and to obtain a fourth
one which would serve as a conciliation report. The court then took the
findings included in this report into consideration and rendered its judgment
concerning the amount of compensation. Having regard to the documents contained
in the case-file, including the minutes of the hearings held before the Sakarya Civil Court of First-instance and the subsequent
judgments concerning the dispute, the Court concludes that there is nothing to
indicate that the proceedings in question were arbitrary or were otherwise
unfair so as to raise an issue under Article 6 of the Convention.
23. In the light of the above
considerations, the Court notes that the complaint under Article 6 § 1 in
respect of the fairness of the proceedings is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. The Court therefore declares this
complaint inadmissible.
B. Merits
24. In the light of its
findings with regard to Article 1 of Protocol No. 1, the Court considers
that it is unnecessary to subject the complaint concerning the length of
proceedings to a separate examination under Article 6 § 1 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
25. 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
26. The applicants sought
compensation for pecuniary damage in the sum of 1,009,000 German marks (DEM).[3]
They also claimed compensation for non-pecuniary damage of DEM 500,000.[4]
27. The Government did not
comment on this point.
28. Using the same method of
calculation as in Aka cited above,
pp. 2683-84, §§ 55-56, and having regard to the relevant economic data,
the Court awards the applicants EUR 11,597 for pecuniary damage.
29. The Court considers that the finding of a violation of Article 1 of Protocol No. 1 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants.
B. Costs and expenses
30. The applicants also claimed DEM 30,000[5] for the costs and expenses incurred before the domestic courts and the Court. However, they have failed to furnish any supporting documents.
31. The Government did not
comment on the applicants’ claim.
32. Making
its own estimate based on the information available, the
Court considers it reasonable to award the applicants a global sum of
EUR 500 under this head.
C. Default interest
33. 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 complaints concerning the alleged violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in respect of the length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 1 of Protocol No.
1 of the Convention;
3. Holds that it is unnecessary to examine the complaint concerning
the length of the proceedings under Article 6 § 1 of the
Convention;
4. Holds
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the
following sums plus any tax, stamp duty or imposts that may be chargeable at
the date of payment, to be converted into Turkish liras at the rate applicable
at the date of settlement:
(i) EUR 11,597 (eleven thousand
five hundred and ninety-seven euros) in respect of pecuniary damage;
(ii) EUR 500 (five hundred euros)
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;
6. Dismisses the remainder of the applicants’ claim for just
satisfaction.
Done in English, and notified in writing
on
Michael O’Boyle Nicolas
Bratza
Registrar President