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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> AKKUS v. TURKEY - 19263/92 [1997] ECHR 45 (9 July 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/45.html
Cite as: 30 EHRR 365, (2000) 30 EHRR 365, [1997] ECHR 45, [2000] 30 EHRR 365
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In the case of Akkus v. Turkey (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr J. De Meyer,
Mr A.N. Loizou,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr B. Repik,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 21 February and 24 June 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 60/1996/679/869. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 19 April 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 19263/92) against the Republic of Turkey lodged with the
Commission under Article 25 (art. 25) by a Turkish national,
Mrs Sariye Akkus, on 26 August 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Turkey recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that she wished
to take part in the proceedings and designated the lawyer who would
represent her (Rule 30). The lawyer was given leave by the President
to use the Turkish language (Rule 27 para. 3). On 6 August 1996 the
President granted the applicant legal aid (Rule 4 of the Addendum to
Rules of Court A).
3. The Chamber to be constituted included ex officio Mr F. Gölcüklü,
the elected judge of Turkish nationality (Article 43 of the Convention)
(art. 43), and Mr R. Bernhardt, the Vice-President of the Court
(Rule 21 para. 4 (b)). On 8 February 1996, in the presence of the
Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the
names of the other seven members, namely Mr Thór Vilhjálmsson,
Mr J. De Meyer, Mr S.K. Martens, Mr A.N. Loizou, Mr G. Mifsud Bonnici,
Mr J. Makarczyk and Mr P. Kuris (Article 43 in fine of the Convention
and Rule 21 para. 5) (art. 43). Subsequently Mr B. Repik,
substitute judge, replaced Mr Martens, who had resigned (Rules 22
para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Turkish Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 29 November 1996
and the applicant's memorial on 2 December 1996. The Delegate of the
Commission did not submit any observations.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
17 February 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr A. Gündüz, Agent,
Mr M. Özmen, Counsel;
Mr F. Polat,
Miss A. Emüler,
Mrs N. Erdim,
Mrs S. Eminagaoglu,
Miss A. Günyakti, Advisers;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mr K. Berzeg, of the Ankara Bar, Counsel.
The Court heard addresses by Mr Geus, Mr Berzeg, Mr Gündüz and
Mr Özmen and also their replies to its questions.
At the hearing counsel for the applicant lodged documents
relating to the application of Article 50 (art. 50). The Government
chose not to reply thereto.
AS TO THE FACTS
I. Circumstances of the case
6. In September-October 1987, the National Water Board
(Devlet Su isleri), a State body responsible for dam construction,
expropriated land belonging to Mrs Akkus and her husband, who died in
1992, in order to build the Altinkaya hydro-electric dam in the
Kizilirmak Valley. The land, which was located in the village of
Gökdogan (Sinop) had been used for growing rice. It now lies under
water.
More than 3,000 families (17,000 people in all) were affected by
the expropriations resulting from the dam construction scheme.
7. According to the applicant, a scientific study commissioned by
the National Water Board and carried out by the
Aegean Faculty of Agronomy found the land to be worth between 3,200 and
3,500 Turkish liras (TRL) per square metre whereas the amount paid in
1987 was between TRL 800 and 850.
8. A committee of experts of the National Water Board assessed the
value of the applicant's land at TRL 122,000. That amount was paid to
her when the expropriation took place.
9. On 12 October 1987 the applicant lodged an application with the
Duragan Court of First Instance for increased compensation and
requested that the rate of inflation be taken into account when
determining the additional loss. On 22 June 1989 the court awarded her
additional compensation of TRL 271,039 and simple default interest at
the rate of 30% per annum from 4 September 1987, the date of the
expropriation. The total compensation thus came to TRL 393,039. She
was also awarded TRL 61,123 for legal costs.
10. The Board appealed to the Court of Cassation on points of law.
Mrs Akkus filed a cross-appeal based on Article 105 of the
Code of Obligations (see paragraph 14 below), in which she sought a
ruling that the basis for calculating the additional loss should be the
rate of inflation and not the rate of statutory interest for delay.
On 17 September 1990 the Court of Cassation upheld the judgment at
first instance.
11. The additional compensation was paid in February 1992, that is
to say six months after the application was lodged with the
European Commission of Human Rights and approximately seventeen months
after the Court of Cassation's decision.
12. Mrs Akkus now lives with her son-in-law, who provides for her
needs.
II. Relevant domestic law and practice
13. By Law no. 3095 of 4 December 1984 the rate of interest on
overdue State debts is 30% per annum. At the material time the average
rate of inflation was 70% per annum and the rate of interest for delay
payable on debts owed to the State was 7% per month (84% per annum)
(section 51 of Law no. 6183 on the Collection of Debts due to the State
and Cabinet Ordinance no. 89/14915).
14. Article 105 of the Code of Obligations provides:
"Where the loss sustained by the creditor exceeds the interest
for late payment and the debtor is unable to show that the
creditor has been at fault, it is for the debtor to make good the
loss.
If the additional loss can be assessed immediately the court may
determine the amount when giving its decision on the merits."
15. On 3 June 1991 the Fifth Civil Division of the
Court of Cassation, which has jurisdiction in cases concerning
compensation for expropriation, ruled as follows:
"The way in which creditors are compensated for the late payment
of debt is through statutory interest. Since creditors are able,
when resorting to enforcement measures, to claim the amount due
to them plus interest, they are not entitled to claim any other
form of compensation; accordingly, the decision to grant the
creditor's claim, on the basis that the rate of inflation was
high, was ill-founded..."
16. On 23 February 1994 (judgment E: 1993/5-600, K: 1994/80) the
Court of Cassation, sitting as a full court, ruled as follows:
"Law no. 3095 was approved and came into force when inflation in
the country was high with rates well over 30%. Notwithstanding
that fact, the legislature fixed the rate of interest for delay
at 30%. In the present case it would therefore be unlawful to
award compound interest at a rate exceeding 30% on the erroneous
basis that the rate of interest payable on bank deposits was
applicable."
PROCEEDINGS BEFORE THE COMMISSION
17. Mrs Akkus applied to the Commission on 26 August 1991. She
complained of an infringement of her right to the peaceful enjoyment
of her possessions on account of the Water Board's delay in paying the
additional compensation for expropriation. She alleged a violation of
Article 1 of Protocol No. 1 (P1-1).
18. The Commission declared the application (no. 19263/92) admissible
on 10 January 1994. In its report of 27 February 1996 (Article 31)
(art. 31), it expressed the opinion by twenty-two votes to six that
there had been a violation of Article 1 of Protocol No. 1 (P1-1). The
full text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
19. In their memorial, the Government invited the Court, as their
primary submission, to declare the application inadmissible for failure
to comply with the six-month time-limit and to exhaust domestic
remedies and, in the alternative, to dismiss it as being unfounded.
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Non-compliance with the six-month time-limit
20. The Government invited the Court to dismiss Mrs Akkus's
application pursuant to Article 26 of the Convention (art. 26) for
non-compliance with the six-month time-limit. Time had in fact started
to run not - as the Commission considered - when the compensation was
actually paid to the applicant (March 1992), but on 17 September 1990,
when the Court of Cassation delivered its judgment confirming the rate
determined in the Duragan Court of First Instance's judgment of 1989
(see paragraph 10 above). The applicant had been affected by that
judgment from the moment it was delivered.
21. The Court notes that the complaint before it is concerned solely
with the national authorities' delay in paying the additional
compensation and the damage sustained by the applicant as a result.
The applicant could not have made such a complaint until some time
after the final judgment of the Court of Cassation (see paragraph 10
above).
By applying to the Commission on 26 August 1991 - at which point
the compensation due had still not been paid - the applicant satisfied
the requirement of Article 26 (art. 26) in that regard. The objection
must therefore be dismissed.
B. Failure to exhaust domestic remedies
22. In the Government's submission, Mrs Akkus had not exhausted
domestic remedies as required by Article 26 of the Convention (art. 26)
in that she had failed to rely on the provisions of the Convention
before the Turkish courts and to exercise the remedy afforded by
Article 105 of the Code of Obligations correctly (see paragraph 14
above).
23. The Court reiterates that in accordance with its settled case-law
it will consider a preliminary objection provided that the State
concerned has already raised that objection before the Commission - in
principle when the question of admissibility is initially examined -
in so far as the nature of the objection and the circumstances
permitted.
As the Delegate of the Commission noted, it is apparent from the
case file that those conditions were not satisfied in the instant case.
The Government are therefore estopped from relying on this objection.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
24. The applicant complained that, at a time when the annual rate of
inflation in Turkey had been 70%, she had been paid insufficient
interest on additional compensation received following the
expropriation of her land and the authorities had delayed in paying her
the relevant amounts. She relied on Article 1 of Protocol No. 1
(P1-1), which provides:
"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 (P1-1) 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."
She complained that the authorities had calculated her
compensation on the basis of the value her land had had when it was
expropriated or when the court proceedings were commenced
(see paragraphs 6 and 9 above). She criticised the Court of Cassation
for refusing to take Article 105 of the Code of Obligations into
consideration and for applying, in order to calculate the additional
compensation, the statutory rate of default interest instead of the
rate of inflation. She pointed out that she was paid the additional
compensation in February 1992 - four years and four months after the
proceedings commenced and more particularly, seventeen months after the
Court of Cassation's judgment - whereas before 1980 payment was being
made in similar cases within at most two months. In addition, she said
that in recent years the time taken for payment had depended on the
good will of the administrative bureaucracy, which had sought by
deferring payment to reduce the value of compensation for expropriation
through the effect of inflation. Lastly, she regretted the lack of
provisions in Turkish law enabling private persons to take enforcement
measures in respect of debts owed to them by the State.
25. The Commission concluded that there had been a violation of
Article 1 of Protocol No. 1 (P1-1) because of the extent of the
applicant's loss; it estimated that Mrs Akkus had received TRL 390,000
whereas, if the national authorities had taken full account of the
monetary depreciation during the seventeen months which elapsed between
determination of the additional compensation and its actual payment,
she would have received approximately TRL 594,000.
26. The Government disagreed. They pointed out that the State had
paid Mrs Akkus compensation of TRL 122,000 before entering into
possession of the land, and additional compensation of TRL 271,039 with
30% interest after the proceedings to reassess the value of the land
(see paragraph 9 above). Even supposing that inflation had not been
taken into account when calculating those amounts, the Government
relied on the Court's case-law to the effect that if the compensation
was reasonably proportional to the value of the expropriated property,
the conditions laid down in Article 1 of Protocol No. 1 (P1-1) were
satisfied. That was particularly so where large-scale schemes for the
benefit of thousands of people were concerned; requiring the State to
provide compensation in full would hinder it in the realisation of such
schemes. Further, the applicant could not claim in the instant case
that she had borne an "individual and excessive burden", as it had been
her decision, at her own risk, not to take advantage of the possibility
afforded her by Article 105 of the Code of Obligations; what was more,
even her lawyer had admitted in an article published in a
Turkish daily newspaper that the expropriation value of certain
properties, including the applicant's, as assessed by the valuations
committee and determined by the courts, was considerably higher than
their market value.
Lastly, the Government relied on their wide margin of
appreciation in setting and applying interest rates, which were an
integral part of their policy for the creation and sound management of
public services. The high rate of interest payable on debts owed to
the State was intended to ensure that there was no disruption of public
services and was also a form of indirect taxation intentionally decided
upon by the legislature in the exercise of its powers.
27. As the situation of which the applicant complains concerns her
"entitle[ment] to the peaceful enjoyment of [her] possessions", the
Court must examine whether a fair balance has been maintained between
the demands of the general interest and the requirements of the
protection of the individual's fundamental rights; in that regard, the
terms and conditions on which compensation is payable under
domestic legislation and the manner in which they were applied in the
applicant's case must be considered (see the Lithgow and Others
v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 50,
para. 120).
28. The Court notes at the outset that the applicant, whose land was
expropriated to enable a hydro-electric dam to be built, was awarded
compensation that was paid to her when the expropriation took place
(see paragraph 8 above). The Duragan Court of First Instance
subsequently awarded her additional compensation plus interest at the
rate of 30% per annum from the date of expropriation (see paragraph 9
above).
It is not the Court's task here to rule on the valuation of the
land carried out by the committee of experts of the
National Water Board or on the amount of the additional compensation.
The scope of the dispute is determined by the Commission's decision on
admissibility and solely concerns the alleged damage sustained by
Mrs Akkus because of the authorities' delay in paying her the
compensation due.
29. In that respect, the Court has previously held that the adequacy
of compensation would be diminished if it were to be paid without
reference to various circumstances liable to reduce its value, such as
unreasonable delay (see, mutatis mutandis, the
Stran Greek Refineries and Stratis Andreadis v. Greece judgment of
9 December 1994, Series A no. 301-B, p. 90, para. 82). Abnormally
lengthy delays in the payment of compensation for expropriation lead
to increased financial loss for the person whose land has been
expropriated, putting him in a position of uncertainty especially when
the monetary depreciation which occurs in certain States is taken into
account. The Court notes on this subject that in Turkey the rate of
interest payable on debts owed to the State - 84% per annum - is such
as to encourage debtors to pay promptly; on the other hand, individual
creditors of the State risk substantial loss if the State fails to pay
or delays payment.
30. In the instant case, the additional compensation together with
interest at the rate of 30% per annum was paid to the applicant in
February 1992, that is to say seventeen months after the
Court of Cassation's judgment, at a time when inflation rates in Turkey
had reached 70% per annum.
This difference - due solely to delay on the part of the
authorities - between the value of the applicant's compensation as
finally determined by the Court of Cassation and its value when
actually paid caused Mrs Akkus to sustain separate loss in addition to
the loss deriving from the expropriation of her land.
31. By deferring payment of the compensation for seventeen months,
the national authorities rendered that compensation inadequate and,
consequently, upset the balance between the protection of the right to
property and the requirements of the general interest.
There has therefore been a violation of Article 1 of
Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
32. Article 50 of the Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Pecuniary damage
33. Mrs Akkus claimed 50,000 US dollars (USD) for pecuniary damage.
In her submission, on 17 September 1990 when the Court of Cassation
delivered its judgment the total amount payable to her would have been
TRL 739,162 if year-on-year inflation of 70% had been taken into
account. She asserted in her memorial that by paying her a total of
TRL 758,200 in February 1992 the national authorities had paid her less
than half the sum due.
34. The Government considered the claim to be "totally unreasonable"
as it exceeded the value of all the expropriated land, of which the
applicant had owned only a fifth. They also pointed out that the
average rate of inflation in Turkey between 1988 and 1992 was
61% per annum.
35. The Court notes that on 17 September 1990 the Court of Cassation
upheld the judgment of the Duragan Court of First Instance. The
Court of First Instance had awarded Mrs Akkus additional compensation
of TRL 271,039 plus simple interest at the rate of 30% per annum from
4 September 1987 and TRL 61,123 for legal costs (see paragraph 9
above). On the date of the Court of Cassation's judgment, or within
a reasonable period (for instance three months) thereafter, the
applicant ought therefore to have received TRL 576,097. As, however,
the payment was made in February 1992 (seventeen months later) she in
fact received approximately TRL 772,276 according to the Court's
calculations.
Having regard to the conclusions it reached in paragraphs 30 and
31 above, the Court considers that the damage sustained by the
applicant is equal to the difference between the amount actually paid
in February 1992 and the amount she would have received if the sum of
TRL 576,097 she was owed had been adjusted to take account of
depreciation over a period of at least fourteen months; on the basis
of a rate of inflation in the region of 70% per annum, the sum due to
her when payment was made was TRL 1,046,192. Consequently, the total
amount of her loss comes to TRL 273,916, or approximately USD 48,
Mrs Akkus having formulated her claim in that currency and the
Government having raised no objection to her so doing.
36. In the circumstances, the Court therefore considers it
appropriate to award the applicant compensation of USD 48, to be
converted into Turkish liras at the rate applicable at the date of
payment.
B. Non-pecuniary damage
37. Mrs Akkus maintained that her position had become extremely
precarious because the compensation she had received for the
expropriation of her land was insufficient. Not only had she lost all
means of subsistence, her memories and the security which the
protective environment of the village had provided, she had also been
obliged to seek refuge in her son-in-law's home and his
financial support, a humiliating position to be in under
Turkish family tradition. She claimed by way of reparation for her
non-pecuniary damage, to the extent that it could be made good,
USD 50,000.
38. The Government and the Delegate of the Commission expressed no
views.
39. The Court considers that the applicant has definitely sustained
non-pecuniary damage, which it assesses on an equitable basis at
USD 1,000.
C. Costs and expenses
40. Mrs Akkus claimed USD 23,960 for costs and expenses incurred in
Turkey and before the Convention institutions.
41. The Government replied that that amount was not certain,
reasonable or based on concrete evidence.
42. In the light of the criteria established in its case-law, the
Court holds on an equitable basis that the applicant should be awarded
the sum of USD 5,000 to be converted into Turkish liras on the date of
payment, from which should be deducted 8,968 French francs already paid
by way of legal aid for fees and travel and subsistence.
D. Default interest
43. The Court considers it appropriate to provide for payment of
default interest at the annual rate of 5% since the sums have been
awarded in US dollars.
FOR THESE REASONS, THE COURT
1. Dismisses by eight votes to one the Government's preliminary
objections;
2. Holds by seven votes to two that there has been a violation of
Article 1 of Protocol No. 1 (P1-1);
3. Holds by seven votes to two that
(a) the respondent State is to pay to the applicant, within
three months, the following sums to be converted into
Turkish liras at the rate applicable on the date of payment:
(i) 48 (forty-eight) US dollars as compensation for
pecuniary damage;
(ii) 1,000 (one thousand) US dollars for non-pecuniary
damage;
(iii) 5,000 (five thousand) US dollars for costs and
expenses less 8,968 (eight thousand nine hundred and
sixty-eight) French francs already received by way of
legal aid;
(b) these amounts, determined in US dollars, shall bear simple
interest at an annual rate of 5% from the expiry of the
above-mentioned three months until settlement;
4. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 9 July 1997.
Signed: Rudolf BERNHARDT
President
For the Registrar
Signed: Paul MAHONEY
Deputy Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mr Thór Vilhjálmsson, joined by Mr Mifsud Bonnici, is
annexed to this judgment.
Initialled: R.B.
Initialled: P.J.M.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON,
JOINED BY JUDGE MIFSUD BONNICI
In this case the respondent State failed to pay the applicant a
sum of money on time. Since the rate of statutory interest was lower
than the rate of inflation, she suffered a loss. Inflation is and has
been a serious problem in many countries and governments view the fight
against inflation as a major part of their economic policy. Rules on
human rights are not an effective instrument in this battle. The
general impact of inflation means that it affects economic life as a
whole and the repercussions on individuals, even if frequently serious,
are rarely - or at least not in this case, in my opinion - individual
and specific. I find that Article 1 of Protocol No. 1 (P1-1) is not
applicable.