[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF GÖG & KOLSUZOĞLU and AGBAYIR v. TURKEY
(Applications
nos. 10332/02 and 25805/02)
JUDGMENT
STRASBOURG
24 January 2008
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 Gög & Kolsuzoğlu and Agbayır v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
András
Baka,
Ireneu
Cabral Barreto,
Rıza
Türmen,
Mindia
Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
judges,
and Sally Dollé, Section
Registrar.
Having
deliberated in private on 4 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 10332/02 and 25805/02)
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 İlhami Gög, Mrs Zerife Kolsuzoğlu and Mrs İslim
Agbayir (“the applicants”), on 9 August 2001 and 23
December 2000 respectively.
- The
applicants were represented by Mr A. Elçi and Mr O. Kaysı,
lawyers practising in Şanlıurfa. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
- On
12 September 2006 the Court decided to give notice of the
applications to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
applications at the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1948, 1936 and 1939 respectively and live in
Şanlıurfa.
- The
applicants were co-owners of a plot of land located in Karaköprü,
Şanlıurfa, registered under parcel no. 740 in the land
registry.
- On
13 April 1989, the Governorship of Şanlıurfa decided to
expropriate the applicants' land, together with other plots. The
expropriation aimed at allocating the plots to the Ministry of
Defence for military needs.
- In
1991 the Ministry of Defence seized the land without compensating the
applicants.
A. The compensation proceedings for de facto
expropriation
- On
24 September 1996 Mr Gög and Mrs Kolsuzoğlu, with
co claimants, filed a compensation claim against the Ministry
for the de facto expropriation (case no. 1996/857). They
submitted that the Ministry had been occupying their land since 1991
without a formal expropriation.
- On
the same day and complaining about the same situation, Mrs Agbayır
also filed a claim together with other co-claimants (case
no. 1996/855).
- The
applicants initiated both cases with partial claims, reserving their
right to request additional compensation should the expert valuations
exceed their partial claims.
- In
both cases the Ministry argued that it had been occupying the land
since the mid-1970s and that the claims were time-barred. The
Ministry relied on Article 38 of the Expropriation Act, Law no. 2942,
pursuant to which all claims for de facto expropriations were
subject to a 20-year prescription period running from the seizure of
the land.
- On
4 December 1996 the court conducted on-site examinations. The experts
appointed by the court valued the land in which both Mr Gög and
Mrs Kolsuzoğlu each held a 1/13 (one thirteenth) share at
52,517,752,560 Turkish liras (TRL), and that in which Mrs Agbayır
held a 1/3 (one third) share at TRL 162,555,120,000.
- Accordingly,
on 27 December 1996, the Şanlıurfa Civil Court handed down
two judgments awarding the applicants their respective partial claims
in full, i.e., TRL 80,000,000,000 to Mrs Agbayır (case
no. 1998/21) and TRL 26,000,000,000 to Mr Gög and Mrs
Kolsuzoğlu (case no. 1998/23).
- On
appeal, the Court of Cassation quashed both judgments, directing the
civil court to broaden the scope of its examination regarding the
value of the land.
- Complying
with this ruling, the Şanlıurfa Civil Court restarted the
proceedings. As its further examinations resulted in the same
valuations, it gave two judgments on 27 October 1998, awarding
the applicants the same amounts as before.
- The
court also ordered the plot in dispute to be registered in the name
of the Treasury. In addition, it made a factual finding with respect
to the year in which the seizure had taken place. Reasoning that the
witness statements brought by the applicants prevailed over the
documents submitted by the Ministry, the court was convinced that the
seizure had happened in 1991.
- On
3 December 1998 the Court of Cassation upheld both judgments.
- On
17 May 1999 the relevant amounts, together with their statutory
interest, i.e. TRL 165,577,780 (case no. 1998/21) and TRL
53,812,780 (case no. 1998/23), were paid to the applicants.
B. The proceedings for additional compensation
- As
the applicants had reserved their right to additional compensation,
they initiated subsequent claims to recover the difference between
the amounts awarded and the values assessed by the experts and
recognised by the court. In this respect, Mrs Agbayır applied,
with a co claimant, to the Şanlıurfa Civil Court on 20
July 1999, requesting the balance of TRL 27,518,373,000 (case
no. 1999/568). A day later, Mr Gög and Mrs Kolsuzoğlu
applied to the same court requesting TRL 4,252,180,480 for each
of them (case no. 1999/576).
- In
case no. 1999/568, the court ruled on 5 October 1999 in favour of Mrs
Agbayır and granted her claim in full. On 9 December 1999,
however, the Court of Cassation favoured, for the first time in the
relevant proceedings, the Ministry's thesis that the seizure had
taken place in the mid-1970s, and most probably in 1977. Accordingly,
it ruled that the additional claims had been filed outside of the
20-year prescription period of Article 38 of the Expropriation Act.
- On
4 May 2000 the Şanlıurfa Civil Court complied with that
ruling and dismissed case no. 1999/568. On 29 June 2000 the
Court of Cassation upheld this ruling. This judgment became final on
10 July 2000.
- The
proceedings in case no. 1999/576 produced a similar outcome. The
Şanlıurfa Civil Court dismissed the additional claims of Mr
Gög and Mrs Kolsuzoğlu on 6 July 2000 for being out of
time. The Court of Cassation upheld that ruling on 19 April 2001 and
refused a rectification review. The judgment became final on 4 June
2001.
- On
10 April 2003 the Constitutional Court annulled Article 38 of the
Expropriation Act.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
full description of the domestic law may be found in Börekçioğulları
(Çökmez) and Others v. Turkey (no. 58650/00, §§
23-29, 19 October 2006).
THE LAW
- In
view of the similarity of the two applications, the Court finds it
appropriate to join them.
I. THE GOVERNMENT'S OBJECTIONS TO ADMISSIBILITY
- The Government raised an objection to the
admissibility of the applications on three grounds. They argued,
firstly, that the applicants lacked any victim status since they had
already obtained full compensation for the expropriation. Secondly,
the applicants had failed to comply with the six month rule
given that the final decisions concerning the ownership of the
property had been given by the Şanlıurfa first instance
court on 3 December 1998, in respect of İlhami Gög and
Zerife Kolsuzoğlu, and on 23 December 1998 in respect of İslim
Agbayır, whereas the applicants had lodged their applications on
9 August 2001 and 23 December 2000 respectively. Thirdly, the
Government contended that the applicants had also failed to exhaust
domestic remedies because they could have brought a new action for
additional compensation subsequent to the Constitutional Court's
judgment of 10 April 2003, whereby Article 38 of Law no. 2942 had
been declared null and void.
- The applicants claimed that they had complied with the
admissibility criteria laid down in Article 35 § 1 of the
Convention.
- The Court notes at the outset that the present case is
similar to Gök and Others v. Turkey (applications nos.
71867/01, 71869/01, 73319/01 and 74858/01, 17 July 2006) since the
complaints arise out of largely identical facts, i.e. the applicants
in the instant case are some of the remaining co owners of the
same plot of land (no. 740), located in Karaköprü
(Şanlıurfa). Against this background, the Court notes that
it has already examined a similar objection of the Government as
regards the applicants' victim status in the former judgment and
rejected it (see Gök and Others §§ 40 44).
It finds no reason to reach a different conclusion in the instant
case.
- As
regards the alleged non-compliance with the six-month rule, the Court
notes that the applicants' complaints do not concern their
inability to obtain compensation for expropriation but the refusal of
the domestic courts to award them additional compensation, which was
the subject matter of the proceedings which ended on 10 July 2000 and
4 June 2001 (see paragraphs 21 and 22 above). Bearing in mind that Mr
Gög and Mrs Kolsuzoğlu lodged their application on 9 August
2001 and Mrs Agbayir introduced her application on 23 December 2000,
the Court considers that the applications were submitted within the
six-month time-limit.
- Finally,
as to the Government's contention that the applicants had failed to
exhaust domestic remedies, the Court notes that, under Article 153 §
6 of the Turkish Constitution, the effects of the Constitutional
Court's judgment on nullity (iptal davası) were not
retrospective. Accordingly, contrary to the Government's assertion,
the Court finds that the applicants could not have brought an action
after the Constitutional Court's judgment which declared Article 38
of Law no. 2942 null and void.
- In
view of the above, the Court dismisses the Government's objections to
the admissibility of the applications.
- The Court further notes that the applications are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor are they inadmissible on any other grounds. They
must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the domestic courts' failure to award them
additional compensation, despite having already established the time
of actual seizure as 1991 in the previous proceedings, had violated
their right to a fair hearing under Article 6 § 1 of the
Convention, which reads, as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested that argument.
- The
Court recalls its earlier finding in the above-mentioned Gök
and Others judgment that the plot of land in question had been
occupied by the Ministry of Defence in 1991 (see also paragraph 7
above) and that, by the judgments of the domestic courts awarding
compensation for expropriation, the applicants had gained res
judicata as regards the determination of the date from which the
prescription period would start running, within the meaning of
Article 38 of Law no. 2942 (see Gök and Others, cited
above, §§ 57 and 58).
- However,
following the Court of Cassation's decision that the date of
occupation of the land must be taken to have occurred in 1977, the
Şanlıurfa first instance court disregarded its earlier
findings in its judgments dated 27 December 1996 and dismissed the
applicants' requests for additional compensation for being out of
time, in application of Article 38 of Law no. 2942 (see
paragraphs 20-22 above). The court's departure from its earlier
finding did not overturn its earlier judgments which were
“irreversible” and thus res judicata and which
had, moreover, been executed (see a contrario, Brumărescu
v. Romania [GC], no. 28342/95, § 62, ECHR 1999 VII,
cited in Gök and Others, § 61). This reassessment of
the facts, which led to findings that were radically different from
those adopted by the same court and which flew in the face of the
applicants' legitimate expectation that, in the same litigation, the
same tribunal would give a ruling which was consistent with its
previous two final judgments, must be regarded as incompatible
with the principle of legal certainty (see Gök and Others,
cited above, § 61).
- In
view of the foregoing considerations, the Court concludes that by
re examining a matter which had already been decided in final
decisions and in the absence of a valid reason, the domestic courts
infringed the principle of legal certainty (ibid., § 62).
There
has therefore been a violation of the applicants' right to a fair
hearing within the meaning of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Relying
on the same facts, the applicants complained of a violation of
Article 1 of Protocol No. 1.
- Having
regard to the finding relating to Article 6 (see paragraph 37
above), the Court considers that it is not necessary to examine
separately whether, in this case, there has also been a violation of
the Protocol (ibid., § 64).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
- The
applicants İlhami Gög and Zerife Kolsuzoğlu each
claimed EUR 82,942 in respect of pecuniary damage and EUR 5,000
for non pecuniary damage. The applicant İslim Agbayir
claimed EUR 247,000 and EUR 20,000 in respect of pecuniary and
non-pecuniary damage respectively.
- The
Government submitted that no awards should be made.
- Having
regard to the documents in its possession and ruling on an equitable
basis, the Court awards EUR 10,000 to each of the applicants İlhami
Gög and Zerife Kolsuzoğlu, and EUR 15,000 to İslim Agbayir,
which sums comprise all types of damages sustained by the applicants
(see Gök and Others, cited above, § 68).
B. Costs and expenses
- The
applicants also claimed EUR 7,000 for the costs and expenses incurred
before the Court.
- The
Government contended that the applicants' claim was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 above criteria and the applicants' failure to substantiate their
claim, the Court makes no award under this head.
C. 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
- Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay the
applicants
the
following sums in damages, to be converted
into Turkish liras at the rate applicable at the date of settlement:
(i)
EUR 10,000 (ten thousand euros) to İlhami Gög;
(ii) EUR
10,000 (ten thousand euros) to Zerife Kolsuzoğlu; and
(iii)
EUR 15,000 (fifteen thousand euros) to İslim Agbayır;
(iv) plus
any taxes which may be chargeable;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
