CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 4 février 2020

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border:0.75pt solid #0072bc; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e8e8e8 } .s35E51398 { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-indent:-18pt; font-size:12pt } .s5F086C28 { width:14pt; font:7pt 'Times New Roman'; display:inline-block } .sF8AEFD1F { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; font-size:12pt } .sF8ABC72E { width:36.32%; border:0.75pt solid #0072bc; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e8e8e8 } .sEAD511A7 { width:23.14%; border:0.75pt solid #0072bc; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e8e8e8 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       SECOND SECTION         CASE OF ALALOĞLU AND OTHERS v. TURKEY (Application no. 42019/06)         JUDGMENT               STRASBOURG 4 February 2020   This judgment is final but it may be subject to editorial revision. In the case of Alaloğlu and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Egidijus Kūris, President,   Ivana Jelić,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 14 January 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 42019/06) 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 six Turkish nationals, on 10 October 2006. A list of the applicants and their personal details are set out in the Appendix. 2.     Following the deaths of two of the applicants, namely, Ms Yaşar Alaloğlu and Mr Süleyman Altay, their heirs, whose names are listed in the Appendix, informed the Court of their intention to pursue the application in their stead. For practical reasons, Ms Alaloğlu and Mr Altay will continue to be called “the applicants” in this judgment, although their heirs are now to be regarded as such. 3.     The applicants were represented by Ms Alaloğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 4.     In a decision of 8 April 2014, the Court declared the applicants’ complaint regarding the length of proceedings inadmissible on account of a new remedy offered by Law no. 6384 and adjourned the examination of the remainder of the application. 5.     On 19   October 2017 the Government were given notice of the complaints under Article 1 of Protocol No. 1 and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicants owned a plot of land, namely, an island on Lake Eğirdir, Isparta. On 15 March 1975 the property was designated as a nature conservation area. 7.     By a decision of 16 December 1980, the Eğirdir Municipality decided to expropriate the property. On 7 April 1981 it determined the expropriation compensation as 1,350,450 former Turkish liras (TRL). Domestic proceedings 8.     On 1 May 1981 the first applicant and a certain Ms Altay, who was the testator of the other applicants, lodged an action before the Eğirdir Civil Court of General Jurisdiction, claiming TRL 18,649,500 in additional compensation. 9.     Subsequently, they lodged another action before the Administrative Court for the annulment of the expropriation decision. The Civil Court decided to adjourn the examination of the additional compensation claim, pending the outcome of the proceedings before the Administrative Court. The administrative case for the annulment of the expropriation decision was eventually dismissed and the property was registered in the name of the Treasury in 1984. In the meantime, in 1984 the applicants initiated a third set of proceedings, which concerned the cadastral records and were concluded in 1995. 10.     During the course of the first set of proceedings regarding additional compensation, on 24 November 1997 the Civil Court carried out an on-site inspection together with two civil engineers and a local expert. On 2   February 1998 the board of experts submitted a report to the domestic court, whereby they determined the value of the property as TRL 6,039,457. 11.     Following the applicants’ objection to that report, the Civil Court carried out another on-site inspection, this time with different civil engineers and another expert. The second expert report dated 19 June 2003 specified the property’s value as TRL 6,197,359. 12.     On 17 March 2006 the Eğirdir Civil Court partially accepted the applicants’ case and awarded them TRL 4,689,007 together with legal interest [1] . In so doing, the domestic court relied on the findings of the first expert report determining the value of the property as TRL 6,039,457, and deducted TRL 1,350,450 initially paid to the applicants from that amount. As regards the applicants’ request to have the amount calculated in view of the inflation rates during the relevant period, the domestic court stated that by initiating several sets of proceedings, the applicants themselves caused the proceedings to last for a long time. It added that in case their loss was not compensated by the statutory interest applied, it was open to them to initiate compensation proceedings for additional damage under Article   105 of the Code of Obligations. Lastly, the court stated that that decision was final. Developments following the lodging of the present application with the Court 13.     By a decision of 8 April 2014 (see Haçikoğlu and Others v. Turkey (dec.), no.   21786/04 and 830 others, 8 April 2014), the Court declared the applicants’ complaint under Article 6 § 1 concerning the length of the domestic proceedings inadmissible for failure to exhaust domestic remedies, in the light of its conclusions in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-58). 14.     Subsequently, on 6 June 2014 the applicants applied to the Compensation Commission established by Law no. 6384 in respect of their complaint concerning the length of the proceedings and those concerning their right to property. 15.     On 19 February 2015 the Compensation Commission found a violation of the applicants’ right to a fair trial on account of the excessive length of the compensation proceedings and awarded them 36,200 Turkish liras (TRY) [2] in respect of non-pecuniary damage. The Commission found that it was not necessary to rule on the other complaints as their examination had been adjourned by the Court. RELEVANT DOMESTIC LAW 16.     The relevant domestic law and practice are set out in the case of Aka v.   Turkey (23 September 1998, Reports of Judgments and Decisions 1998 VI). 17 .     A description of the Compensation Commission established by Law no.   6384 and the extension of that Commission’s competence by a decree of 16   March 2014 may be found in the case of Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, 27 May 2014). The relevant parts of the said decree read as follows: Article 4 “By the decree dated 16 March 2014 (no. 2014/5917) the competence ratione materiae of the Compensation Commission has been extended to include applications regarding the following matters: a) Loss in value of the expropriation or easement compensation due to the length of proceedings and inflation, in cases of expropriation or grant of easement carried out under Law no. 2942 on Expropriation dated 4 November 1983; ...”   THE LAW ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION 18.     The applicants argued that their right to peaceful enjoyment of possessions had been violated on account the financial loss caused to them by the excessive length of the proceedings and the high inflation rates. They also complained of the domestic court’s calculation of the compensation amount. The applicants relied on Article 1 of Protocol No. 1 to the Convention, 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.” 19.     The Government contested those arguments. Admissibility Calculation of the compensation awarded to the applicants 20.     The applicants complained about the domestic court’s calculation of the additional expropriation compensation, arguing that the expert reports submitted to the court had determined the price of the land substantially lower than its actual value, without taking account of the property’s specific nature as an island. 21.     The Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable. It observes that in determining the additional expropriation compensation, the domestic court relied on one of the two expert reports drawn up following on-site inspections, which reached similar conclusions regarding the value of the property. In the absence of any arbitrariness, it finds no reason to question the domestic court’s finding (see Andiçi v. Turkey , no. 27796/03, § 15, 4 March 2008; contrast Yıltaş Yıldız Turistik Tesisleri A.Ş. v. Turkey , no. 30502/96, §   38, 24   April 2003, and Preite v. Italy , no. 28976/05, §§ 51-3, 17 November 2015). It follows that this part of the application must be rejected under Article   35 §§ 3 and 4 of the Convention for being manifestly ill-founded. Financial loss caused by monetary depreciation 22.     The Government argued that the applicants had failed to exhaust domestic remedies on two accounts. They contended firstly that the applicants should have lodged a compensation claim for additional damage under Article   105 of the Code of Obligations in force at the time (Law no.   818). Referring to the Court’s decisions in the cases of Kat İnşaat Ticaret Kollektif Şirketi/İsmet Kamış ve Ortakları v. Turkey ((dec.), no.   74495/01, 31 January 2006) and Balkar Baltutan and ANO İnşaat ve Ticaret Limited Şirketi v. Turkey ((dec.), no. 9522/03, 7 October 2008), the Government claimed that the present case was similar to those cases, where the Court had found that the applicants had failed to comply with the exhaustion requirement as they had not made use of the remedy available under Article 105 of the Code of Obligations. The Government also submitted that the complaint was inadmissible for non-exhaustion of domestic remedies as the applicants had not applied to the Compensation Commission. 23.     The applicants maintained that the remedy provided by Article   105 of the Code of Obligations was not relevant in their case. They also stated that following the Court’s inadmissibility decision regarding their complaint concerning the excessive length of the proceedings, they had indeed applied to the Compensation Commission, which had awarded them compensation for their complaint under Article 6. However, the Commission had held that it had not been necessary to examine the complaint concerning their right to property as the matter had been pending before the Court. 24.     As to the Government’s objection concerning the non-exhaustion of domestic remedies on account of the applicant’s failure to use the remedy provided under Article 105 of the Code of Obligations, the Court observes at the outset that the cases relied on by the Government in support of their objection differed from the present case, in particular as neither of those two cases concerned the expropriation of a property. It notes that it dismissed similar arguments in previous cases (see Aka , cited above, §§ 34-7, and Sait Işık v. Turkey , no. 19255/02, § 15, 10 March 2009) and sees no reason to conclude otherwise in the present case. The Court therefore rejects the Government’s objection. 25.     As for the Government’s argument regarding the Compensation Commission, the Court notes firstly that the decree of 16 March 2014 extended the Commission’s jurisdiction to the examination of applications concerning the loss in value of the expropriation amounts, in so far as the expropriation at issue was made under Law no. 2942 of 4 November 1983 (see paragraph 17 above). It observes that the applicants’ property was expropriated by the Eğirdir Municipality in 1980, that is, before the entry into force of Law no. 2942. In that connection, it notes that the Government did not state anything to clarify whether the Compensation Commission was competent to examine similar cases arising from expropriations made before 4   November 1983. 26.     The Court also notes that the applicants raised their complaint concerning the loss in value of the expropriation amount when they applied to the Compensation Commission on 6 June 2014. However, the Commission found that it need not examine that complaint as the Court had adjourned its examination. 27.     In view of the above and in the particular circumstances of the present case, the Court cannot determine with certainty whether the Compensation Commission is competent to examine the applicants’ complaint concerning the loss in value of the expropriation compensation awarded to them. It therefore dismisses the Government’s objection under this head as well. 28.     The Court notes that the complaint is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 29.     The applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to property had been violated on account of the financial loss they had had to endure due to the excessive length of the proceedings and high rates of inflation. 30.     The Government did not make any submissions on the merits of the case. 31.     The Court reiterates that it has already found a violation of Article   1 of Protocol No.   1 in a number of applications that raise similar issues to those that arise in the present case (see, among many others, Aka , cited above, §§ 49-51, and Köse v. Turkey , no. 37616/02, § 15, 7 December 2010). 32.     Having regard to the economic data for the period between the years 1980 and 2006, in particular the fact that the statutory interest rate applied during that period varied between 9% and 60%, whereas the actual inflation rate varied between 7,7% and 125,49%, the Court finds in the present case that the difference between the statutory interest rates applied to the compensation amount and the actual inflation rates caused the applicants to sustain financial loss. Consequently, the applicants had to bear an individual burden that has upset the fair balance which must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions. 33.     There has accordingly been a violation of Article   1 of Protocol No.   1 to the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 34.     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.” Damage 35.     The applicants claimed 15,000,000 euros (EUR) in respect of pecuniary damage and EUR 10,000,000 in respect of non-pecuniary damage. 36.     The Government contested these claims, finding them excessive. 37.     Using the same method of calculation as in the Aka judgment (cited above, §§ 53-7) and having regard to the relevant economic data, the Court awards the applicants EUR 97,500 jointly, in respect of pecuniary damage. 38.     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 Baskın v. Turkey , no. 9125/04, § 53, 8 February 2011). Costs and expenses 39.     The applicants did not submit any claim for costs and expenses. Accordingly, the Court concludes that there is no call to award them any sum on that account. Default interest 40.     The Court considers it appropriate that the default interest rate 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 complaint concerning the loss in value of the expropriation compensation awarded to the applicants admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; Holds (a)   that the respondent State is to pay the applicants, jointly, within three months, EUR 97,500 (ninety-seven thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into 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 amount 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 4 February 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Egidijus Kūris Deputy Registrar   President   APPENDIX No. Applicant’s Name Birth year Place of residence 1 Yaşar ALALOĞLU          Şükrü Cengiz ALALOĞLU, 1951 - Isparta          Fatma Fazilet ELLİBEŞ, 1955 - İzmir   ;          Tahsine Alaloğlu, ALALOĞLU, 1959 - Istanbul.   1926 – died in 2015 Ankara 2 Süleyman ALTAY -           Aydan ALTAY, 1936 - Istanbul   1926 – died in 2011 Ankara 3 Perihan ALTAY (AKYOL) 1956 Ankara 4 Makbule ALTAY (EKŞİOGLU) 1945 Ankara 5 Süreyya ALTAY (KARADAVUT) 1963 Ankara 6 Mefharet ALTAY (KARADENİZ) 1950 Ankara   [1] .     Approximately 30 euros,   including the legal interest, at the time [2] .     13,000 euros at the time