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SECOND
SECTION
CASE OF KÖSE v. TURKEY
(Application
no. 37616/02)
JUDGMENT
STRASBOURG
7
December 2010
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 Köse v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Ireneu
Cabral Barreto,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
Kristina
Pardalos, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37616/02) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by six Turkish nationals, Bozan
Köse, İbrahim Halil Köse, Mehmet Köse, Meryem
Köse, Müslüm Köse and Zöhre Köse
(“the applicants”), on 17 May 1997.
- The
applicants were represented by Mr M. Erkmen, a lawyer practising in
Şanlıurfa. The Turkish Government (“the Government”)
were represented by their Agent.
- On
4 November 2008 the Court declared the application partly
inadmissible in respect of Mr Müslüm Köse, Mr Mehmet
Köse, Mr Bozan Köse and Ms Meryem Köse and
decided to communicate the application to the Government in respect
of the other applicants, İbrahim Halil Köse and Zöhre
Köse, in relation to parcels nos. 155, 193, 157, 195, 27, 150,
171, 135, 203 and 129 owned by them. It also decided to examine the
merits of the application at the same time as its admissibility
(former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants İbrahim Halil Köse and Zöhre Köse are
Turkish nationals who were born in 1955 and 1927 respectively and
live in Şanlıurfa. They are represented before the Court by
Mr M. Erkmen, a lawyer practising in Şanlıurfa.
- On
an unspecified date the Ministry of Energy and Natural Resources
expropriated several plots of land, namely parcels nos. 155, 193,
157, 195, 27, 150, 171, 135, 203 and 129, belonging to the applicants
in the Meteler village of Birecik, in Şanlıurfa, for the
construction of the Birecik Dam.
- In
1996, the applicants commenced proceedings before the Birecik Civil
Court for additional compensation for their respective plots.
Following the applicants' requests, the Birecik Civil Court of First
Instance awarded them additional compensation plus interest at the
statutory rate. However, no interest was awarded for parcels nos. 203
and 129. The Ministry of Energy and Natural Resources appealed and
the Court of Cassation upheld the judgments of the first instance
court.
- In
February and June 1997 the administration made payments to the
applicants of additional compensation. The details regarding the
proceedings and payments are indicated in the table below:
|
NAMES
OF THE
APPLICANTS
|
DATE
ON WHICH THE APPLICANTS INITIATED PROCEEDINGS FOR ADDITIONAL
COMPENSATION
|
DATE
OF FIRST-INSTANCE COURT DECISION
|
DATE
OF COURT OF CASSATION DECISION
|
AMOUNT
OF ADDITIONAL COMPENSATION AWARDED
(in
Turkish liras (TRL))
|
DATES
AND
AMOUNTS
OF PAYMENT
(INCLUDING
STATUTORY INTEREST
AT
THE RATE OF 30 %
PER
ANNUM AND COSTS)
(in
TRL)
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 155)
|
19/03/1996
|
26/08/1996
|
18/11/1996
|
1,868,488,592
|
14/02/1997
2,324,891,115
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 193)
|
19/03/1996
|
26/08/1996
|
18/11/1996
|
2,161,447,064
|
14/02/1997
2,698,610,288
|
|
İ.
Halil Köse
Zöhre Köse
(parcel
no. 157)
|
19/03/1996
|
26/08/1996
|
18/11/1996
|
1,063,296,256
|
14/02/1997
1,300,603,385
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 195)
|
19/03/1996
|
26/08/1996
|
18/11/1996
|
1,850,677,152
|
14/02/1997
2,301,699,955
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 27)
|
19/03/1996
|
27/08/1996
|
27/12/1996
|
406,275,000
|
10/06/1997
495,477,646
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 150)
|
19/03/1996
|
5/07/1996
|
25/11/1996
|
209,207,112
|
14/02/1997
228,681,850
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 171)
|
19/03/1996
|
26/08/1996
|
18/11/1996
|
772,542,480
|
14/02/1997
931,692,931
|
|
İ. Halil Köse
Zöhre Köse
(parcel
no. 135)
|
19/03/1996
|
26/08/1996
|
25/11/1996
|
627,694,984
|
14/02/1997
747,662,131
|
|
İ. Halil Köse
(parcel
no. 203)
|
19/03/1996
|
27/08/1996
|
23/12/1996
|
2,667,498,900
|
10/06/1997
2,595,161,406
|
|
İ. Halil Köse
(parcel
no. 129)
|
19/03/1996
|
11/10/1996
|
23/12/1996
|
688,410,160
|
10/06/1997
632,468,110
|
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the cases of Akkuş
v. Turkey (9 July 1997, Reports of Judgments and Decisions
1997 IV), Aka v. Turkey (23 September 1998, Reports
1998 VI), Gaganuş and Others v. Turkey (no.
39335/98, §§ 15-19, 5 June 2001), and Ak v. Turkey
(no. 27150/02, §§ 11-13, 31 July 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE
CONVENTION
- The
applicants complained that they had
suffered financial loss due to the insufficient interest rates
applied on the additional compensation received following the
expropriation of their properties and that
the authorities had delayed in paying them the relevant amounts.
A. Admissibility
- The
Government firstly submitted that the expropriation procedure with
respect to parcels nos. 155, 27, 135 and 129 were annulled by the
State pursuant to Article 22 of the Code of Expropriation on 24
September 2001. The applicants subsequently took their
properties back by exchange of the expropriation compensation they
were paid. The applicants, therefore, lacked victim status concerning
these parcels. The Government further contended that the applicants
had not exhausted domestic remedies as required by Article 35 of the
Convention, as 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.
- The
applicants maintained their allegations.
- As
to the Government's preliminary objection as regards the annulment of
the expropriation procedure with respect to parcels nos. 155, 27, 135
and 129, the Court notes that Article 22 of the Code of Expropriation
provides for an optional right for the former owners of the
expropriated land to get back their property in return for payment of
the same amount of compensation that they were paid in the event that
the State decides to annul the expropriation. In the present case,
the Court observes that the applicants chose to avail themselves of
this optional right and regained their full property rights over the
parcels in question. The Court, in this regard, underlines that the
applicants were not asked to make any further payment other than the
amount of compensation that they had been paid by the State at the
time of the expropriation nor did the State apply any interest rate
whatsoever. Therefore, the Court considers that
the principle of restitutio in
integrum was ensured in respect of
the impugned parcels of the applicants. Consequently, the Court
decides to declare this part of the application inadmissible for
being manifestly ill-founded pursuant to Article 35§ 3 and
4 of the Convention.
- As
to the Government's other objection concerning non-exhaustion of
domestic remedies, the Court observes that it dismissed a similar
argument in the case of Aka, cited above, §§ 34 37.
It sees no reason to do otherwise in the present case and therefore
rejects the Government's objection.
- The
Court notes that the application, is therefore, not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention as far as it concerns parcels nos. 193, 157, 195, 150, 171
and 203. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- As
regards the merits of the case, the Court reiterates that it 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, §§ 50 51). Having examined the
facts and arguments presented by the Government, the Court considers
that there is nothing to warrant a departure from this conclusion
reached in the previous cases. It finds that the difference between
the values of the amounts due to the applicants when their properties
were expropriated and when they were actually paid caused them to
sustain a loss which upset the fair balance that should have been
maintained between the protection of the right to property and the
demands of the general interest.
- Consequently,
there has been a violation of Article 1 of Protocol No. 1
in relation to parcels nos. 193, 157, 195, 150, 171 and 203.
II. 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 claimed in the sum of 156,774 US
dollars (USD) in respect of pecuniary damage and USD 6,000 in
respect of non-pecuniary damage.
- The
Government contested these claims and asserted that they were
excessive and speculative.
- Using
the same method of calculation as in the Aka judgment (cited
above, §§ 53-57) and having regard to the relevant economic
data, the Court awards the applicants Mr
İbrahim Halil Köse and Ms Zöhre Köse,
jointly, 31,409 euros (EUR) for pecuniary damage in relation to all
parcels indicated above, except parcel no. 203.
- The
Court also awards the applicant İbrahim Halil Köse EUR
5,083 in respect of his pecuniary damage in relation to parcel no.
203.
- The
Court further considers that the finding of a violation constitutes
in itself sufficient compensation for any non-pecuniary damage
suffered by the applicants (see Mesut
Yurtsever v. Turkey, no. 42086/02,
§ 23, 19 July 2007).
B. Costs and expenses
- The
applicants also claimed USD 10,000 for the costs and expenses
incurred before the Commission and the Court.
They did not produce any supporting documents.
- The
Government contested this claim.
- According
to the Court's case law, an applicant is entitled 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, the applicants have neither
substantiated nor documented that they have actually incurred the
costs claimed. Accordingly, 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
- Declares
the application admissible in relation to the property issue
concerning parcels nos. 193, 157, 195, 150, 171 and 203, and the
remainder of the application inadmissible;
- Holds
that there has been a violation of Article 1 of Protocol No. 1;
- Holds
that finding a violation constitutes sufficient satisfaction for any
non-pecuniary damage sustained;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention, EUR 31,409 (thirty-one thousand four hundred and
nine euros), jointly to Mr İbrahim Halil Köse and
Ms Zöhre Köse, and EUR 5,083 (five thousand and
eighty-three euros) to Mr İbrahim Halil Köse, in respect of
pecuniary damage, to be converted into new Turkish liras at the rate
applicable at the date of settlement;
(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 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Ireneu
Cabral Barreto
Registrar President
