CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 juillet 2010

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Turkey (application no 40349/05)     SYSTEMIC problEm CONCERNING expropriation PROCEDURE   Unanimously   Violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights     Principal facts   The applicants, Hüsne Yetiş, Gülhan Yücel, Fatma Ergin, Hatice Ergin and Ali Mehmet Yetiş, are five Turkish nationals who were born in 1928, 1969, 1947, 1963 and 1965 respectively and live in Niğde (Turkey). In December 2000 the authorities declared that it was in the public interest to expropriate farm land belonging to them with a view to building a motorway. As no agreement was reached on the amount of compensation for the expropriation, on 27 May 2002 the authorities brought an action in the Ulukışla District Court, seeking an assessment of the amount and an entry in the land register recognising their ownership of the land in question. After commissioning three expert reports, on 14   October 2002 the court held that on the date on which the action had been brought, the value of the land had been more than 32 billion Turkish liras and ordered the authorities to pay that amount into a blocked bank account. The payment was made on 22   November   2002. In a judgment of 26 November 2002, which was final as regards the transfer of ownership but subject to an appeal on points of law as regards the amount of compensation, the court directed that the sum was to be paid to the applicants, without any default interest, and that the authorities were to be entered in the land register as owners of the land. On 18 November 2003 the Court of Cassation quashed the first-instance judgment.   Following two further expert reports produced at its request, on 15 October 2004 the District Court assessed the total amount of compensation (as of the date on which the action had been brought) at more than 68 billion Turkish liras. It directed that the outstanding balance of approximately 36 billion Turkish liras was to be paid into the specially-opened bank account, but rejected the applicants’ request for interest to be payable on the additional compensation for the expropriation at the maximum rate applicable under Article 46 of the Constitution. The sum due was paid to the applicants. On 12 May 2005 the Court of Cassation dismissed an appeal on points of law and upheld the first-instance judgment. At the time of the events, there was a very high rate of inflation in Turkey.     Complaints, procedure and composition of the Court   The applicants complained that the compensation they had received for the expropriation had not reflected the real value of their land at the time when it had been paid. They submitted that a considerable amount of time had passed between the dates on which the land had been valued and the compensation paid, and that no system was in place to offset the resulting depreciation. They further argued that in order to afford redress for the loss thus sustained, the domestic courts should have applied the maximum interest rate applicable under Article 46 of the Constitution, but had not done so. The applicants relied on Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing).   The application was lodged with the European Court of Human Rights on 25 October 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), András Sajó (Hungary), Nona Tsotsoria (Georgia), Işıl Karakaş (Turkey), Guido Raimondi (Italy), judges , and also Stanley Naismith , Deputy Section Registrar .     Decision of the Court   The Court noted firstly that the applicants had been deprived of their property in accordance with Turkish law and had not contested the actual amount of the compensation for the expropriation. Its task was therefore limited to determining whether they had had to bear a disproportionate and excessive burden as a result of the alleged depreciation in the compensation between the date on which the value of the property had been assessed (the date of the action in the District Court) and the date of payment.   At the outset, the Court dismissed the argument that the maximum rate of interest applicable under Article 46 of the Constitution should have been applied in this case. According to the settled case-law of the Court of Cassation, that rate was applicable only if a final award of compensation for expropriation remained unpaid. That had not been the case here, since the compensation awarded by the District Court for the expropriation had been paid immediately.   The Court then examined the question of the loss in value of the compensation. Seeing that the applicants had been paid the compensation in two instalments, the first at the end of the first round of proceedings in the District Court and the second at the end of the second round of proceedings in the same court, the Court considered the two rounds of proceedings separately.   With regard to the first round of proceedings, the Court observed that no default interest had been payable on the sum awarded to the applicants at the end of that round, despite the fact that during the period in question (from the date on which the action was brought until the judgment) the average annual rate of inflation had been 31.5%. As a result, the compensation awarded to the applicants for the expropriation had decreased in value by 14.68%, a considerable amount. Even if the applicants had been able to continue using the land during the proceedings – which they had not – that would not have sufficiently offset such a loss. Furthermore, no legitimate “public interest” ground could have justified reimbursement of less than the full market value of the applicants’ land. The Court observed that the difference between the value of the compensation for the expropriation on the date on which the court action had been brought and the value when it had actually been paid was due to the lack of default interest. Such a difference had upset the fair balance that should have been maintained between the protection of the applicants’ right of property and the demands of the general interest.   With regard to the second round of proceedings, the Court could not but observe that no default interest had been payable on the additional compensation for expropriation awarded to the applicants at the end of that round either, although the average annual rate of inflation had been 15% between the date on which the court action had been brought and that of the second judgment. During those two years and seven months, the additional compensation had decreased in value by approximately 43%. The Court therefore considered that, during this second period too, the applicants had had to bear a disproportionate and excessive burden that could not be justified by a legitimate general interest.   Accordingly, there had been a violation of Article 1 of Protocol No. 1.   In view of its conclusions concerning Article 1 of Protocol No. 1, it was not necessary for the Court to examine separately whether there had also been a violation of Article 6 § 1.   Article 46 (binding force and execution of judgments)   The Court observed that the violation it had found had originated in a systemic problem connected with the absence in Turkish law of a mechanism whereby the national courts could take account of the potential depreciation in the value of compensation awarded for expropriation, as a result of the combined effect of the length of proceedings and inflation. More than 200 similar applications were currently pending before the Court, and the deficiencies in national law identified in the applicants’ case could give rise to a large number of subsequent cases. This was an aggravating factor as regards the State’s responsibility under the Convention for an existing or past state of affairs.   The Court reaffirmed that Turkey was free, subject to monitoring by the Committee of Ministers, to choose the means of executing the Court’s judgments. It nevertheless observed that in order to execute the present judgment, Turkey would undoubtedly have to adopt general measures to prevent further similar violations. Without prejudice to any other measures that Turkey might envisage, the Court held that the most appropriate form of redress would be to incorporate into the Turkish legal system a mechanism for taking account of potential depreciation in the value of compensation for expropriation as a result of the combined effect of the length of proceedings and inflation. This aim could be achieved, for example, by charging default interest to offset such depreciation or, failing that, by awarding appropriate redress for losses sustained by those concerned.     Article 41 (just satisfaction)   The Court held that Turkey was to pay the applicants, jointly, 16   000 euros (EUR) for pecuniary damage (to cover the loss in value of the compensation for expropriation during the course of the proceedings for assessment of the compensation) and EUR 500 for costs and expenses. As to their remaining claims, the finding of a violation afforded sufficient redress for any non-pecuniary damage the applicants might have suffered as a result of the facts of the case.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website .   Press contacts [email protected] / +33 3 90 21 42 08   Frédéric Dolt (telephone: + 33 3 90 21 53 39) Emma Hellyer (telephone: + 33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Nina Salomon (telephone: + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles   43   and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.