MUTLU proti Turecku

SECOND SECTION

CASE OF MUTLU v. TURKEY

(Application no. 8006/02)

JUDGMENT

STRASBOURG

10 October 2006

FINAL

12/02/2007

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 Mutlu 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 I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 19 September 2006,

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

PROCEDURE

1. The case originated in an application (no. 8006/02) 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 a Turkish national, Mr Mehmet Ali Mutlu (“the applicant”), on 9 January 2002. By a letter dated 30 May 2006 the applicants’ representatives informed the Court that the applicant had died on 11 October 2002 and that his heirs Hatice Mutlu, Süzan Çetin, Ayşe Adatepe, Hasan Mutlu and Uğur Mutlu, wished to pursue his application.

2. The applicant was represented by Mr S. Koçtekin, a lawyer practising in Afyon. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3. On 21 November 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1932 and was living in Afyon. Following his death on 11 October 2002, his wife and children expressed their intention to pursue the application.

5. On 29 November 1996 the General Directorate of the National Water Board expropriated two plots of land belonging to the applicant, for the construction of a dam. A committee of experts assessed the value of the land and the relevant amount was paid to the applicant.

6. On 14 December 1999, following the applicant’s request of 17 June 1997 for increased compensation, the Sandıklı Civil Court of General Jurisdiction awarded him 685,037,145 Turkish liras (TRL) of additional compensation, plus interest at the statutory rate, as of 29 November 1996.

7. On 18 April 2000 the Court of Cassation upheld the decision of the first instance court. On 21 January 2002 TRL 2,311,730,000 was paid to the applicant.

8. On 8 May 2003 the execution office informed the General Directorate of the National Water Board that they still had to pay the applicant the remaining TRL 559,000,000.

9. On 25 June 2003 the administration filed an objection against the remaining amount of debt, before the Sandıklı Enforcement Court.

10. On 26 February 2004 the court partially upheld the objection of the administration and concluded that TRL 371,393,824 had to be paid to the applicant. The administration’s request to appeal was dismissed by the court on 13 April 2004.

11. On 14 May 2004 the General Directorate of the National Water Board paid TRL 261,450,000 to the applicant.

THE LAW

I. PRELIMINARY OBJECTIONS

12. The Government submitted that the case should be struck out of the Court’s list of cases on the ground that the applicant’s widow and children were not affected by the alleged violation, and thus they could not claim to be victims within the meaning of Article 34 of the Convention. Moreover, they claimed that the application should be rejected for failure to comply with the six-month time-limit under Article 35 § 1 of the Convention, since the Court of Cassation had upheld the decision of the first instance court on 18 April 2000, while the application was lodged with the Court on 9 January 2002.

13. Regarding the first limb of the Government’s objections, the Court notes that the applicant died on 11 October 2002. On 30 May 2006 his wife and children expressed their wish to continue the application. The Court reiterates that in a number of cases in which an applicant had died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. In the present case, the Court considers that, apart from explicitly expressing their wish to do so, the widow of the applicant and his children have sufficient legitimate interests in obtaining a ruling that the authorities have not fulfilled their obligation to respect their predecessor’s right to the protection of his property under Article 1 of Protocol No. 1, that the proceedings against him lasted for an excessive period in breach of Article 6 § 1 of the Convention and that his right to respect for private and family life under Article 8 was breached (Latif Fuat Öztürk v. Turkey, no. 54673/00, §§ 26-27, 2 February 2006)

14. Consequently, the Government’s objection that the case to be struck out should be rejected (see, among many other cases, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI).

15. As regards the second objection of the Government, the Court notes that the complaint before it concerns the authorities’ delay in paying the additional compensation and the damage sustained by the applicant as a result.

16. The first payment was made by the authorities on 22 January 2002, while the second was made on 14 May 2004. By lodging his application with the Court on 9 January 2002, the applicant complied with the requirement set out in Article 35 § 1 of the Convention. The preliminary objection of the Government must therefore be dismissed.

17. The Court notes that the application 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. It must therefore be declared admissible.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

18. The applicant complains under Article 1 of Protocol No. 1 that he was paid insufficient interest on the additional compensation received following the expropriation of his land and that the authorities delayed paying him the relevant amount. Article 1 of Protocol No. 1 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.”

19. 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, for example, Akkuş v. Turkey, judgment of 9 July 1997, Reports of Judgments and Decisions 1997‑IV, p. 1317 § 31).

20. 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 the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner to sustain 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 applicant has 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 the protection of the right to the peaceful enjoyment of possessions.

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

III. ALLEGED VIOLATION OF ARTICLES 6 and 8 OF THE CONVENTION

22. The applicant contended that the length of the civil proceedings exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention. Moreover, he complained under Article 8 of the Convention that by delaying the payment of the additional compensation and by unlawfully depriving him of his property, the authorities violated his right to respect for his private and family life.

23. In the light of its findings with regard to Article 1 of Protocol No. 1 above (paragraphs 20-21), the Court considers that no separate examination of the case under Articles 6 § 1 and 8 is necessary (Dolgun v. Turkey, no. 67255/01, § 24, 13 June 2006 and Mehmet Salih and Abdülsamet Çakmak v. Turkey, no. 45630/99, § 22, 30 April 2004).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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

25. The applicant sought reparation for pecuniary and non-pecuniary damage, but left the amount to the discretion of the Court. However, he indicated that, due to the authorities’ delay in paying the additional compensation, he was unable to pay some of his debts, which were TRL 3,583 (approximately EUR 1,856).

26. The Government contested his claim. They argued that his request was speculative.

27. Using the same method of calculation as in the Akkuş judgment (cited above, p. 1311, §§ 35-36 and 39) and having regard to the relevant economic data, the Court awards the applicant’s heirs EUR 6,400 for pecuniary damage.

28. The Court considers that the finding of a violation of Article 1 of Protocol No. 1 constitutes in itself sufficient just satisfaction for any non‑pecuniary damage suffered by the applicant.

B. Costs and expenses

29. The applicant claimed in respect of representation fees, 20 % of the amount attributed to him by the Court as damages. Moreover, he claimed 750 New Turkish Liras (YTL) (approximately EUR 388) for the legal expenses.

30. The Government contended that the applicant’s claims were unsubstantiated.

31. Making its own estimate based on the information available, the Court considers it reasonable to award the applicant’s heirs the sum of EUR 500 under this head (see, among many others, Uğur and Others v. Turkey, no. 49690/99, § 26, 7 October 2004).

C. Default interest

32. 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 application admissible;

2. Holds that there has been a violation of Article 1 of Protocol 1;

3. Holds that there is no need to examine separately the complaints under Articles 6 § 1 and 8 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage;

5. Holds

(a) that the respondent State is to pay the applicant’s heirs, 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 6,400 (six thousand four hundred euros) in respect of pecuniary damage;

(ii) EUR 500 (five hundred 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa
Registrar President