European Court of Human Rights

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45374/04
by Mehmet DÖGÜŞ and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 December 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 6 October 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Mehmet Dögüş, Ms Ayşe Dögüş, Mr Veysel Dögüş, Ms Saadet Seyhan (Dögüş) and Ms Safiye Dögüş, are Turkish nationals who were born in 1972, 1966, 1976, 1965 and 1944, respectively, and live in Adana. They were represented before the Court by Mr M. Çinkılıç, a lawyer practising in Adana.

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 8 February 2001 the applicants' plot of land of 652 m² located in the Yüreğir district of Adana was expropriated by a decision of the Adana Governor's office for the construction of a school.

The applicants were paid 10,000,000 Turkish liras (TRL)¹ per square metre of their land as compensation.

On 1 May 2001 the applicants brought an action before the Adana Civil Court for additional compensation.

On 20 November 2001 the Adana Civil Court partially granted the applicants' request after having obtained two expert reports on the value of the land.

On 29 April 2002 the Court of Cassation quashed the judgment of the Adana Civil Court and remitted the case to that court for a revaluation of the land.

On 23 January 2003 the Adana Civil Court partially granted the applicants' request in the light of additional expert reports.

On 15 April 2003 the Court of Cassation quashed the judgment of the Adana Civil Court once again due to the lack of clarity of the expert reports and requested the revaluation of the land.

On 28 October 2003 the Adana Civil Court awarded the applicants additional compensation of TRL 4,171,940,000² on the basis of additional expert reports, plus interest at the statutory rate, running from 10 April 2001.

On 29 March 2004 the Court of Cassation upheld the judgment of the first-instance court.

On 2 July 2004 the administration paid the applicants TRL 13,826,638,792³ in additional compensation, together with interest.

COMPLAINTS

The applicants alleged under Article 6 § 1 of the Convention that they had been denied a fair hearing as their claims had not been determined within a reasonable time.

The applicants maintained under Article 1 of Protocol No. 1 that the amount of additional compensation awarded by the domestic court was not fair and did not reflect the real value of their land.

The applicants also complained under Article 1 of Protocol No. 1 that the excessive delay in the payment of the additional compensation, coupled with the low interest rates, had caused them to suffer financial loss.

THE LAW

1.  The applicants complained under Article 6 § 1 of the Convention that the proceedings had not been concluded within a reasonable time.

The Court notes that the proceedings began on 1 May 2001, when the applicants lodged an application with the Adana Civil Court for increased compensation, and ended on 29 March 2004 with the Court of Cassation's decision. The relevant period thus lasted two years and ten months at two levels of jurisdiction, with two remittals, which period the Court finds relatively short in the circumstances and thus cannot be regarded as excessive.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicants complained under Article 1 of Protocol No. 1 that the amount of additional compensation awarded by the domestic court had not been fair and had not reflected the real value of their land.

The Court reiterates that, according to the relevant case-law, the establishment of facts and the assessment of evidence are primarily matters for the domestic courts, the Court's supervisory jurisdiction being limited to ensuring that an applicant's Convention rights have not been breached (see, among many other examples, Nalbant v. Turkey (dec.), no. 61914/00, 12 May 2005).

The Court observes that in the present case the Adana Civil Court ordered several expert reports in order to reach an accurate finding regarding the value of the expropriated land, and awarded the applicants additional compensation in the light of these reports. Although the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact at the national level (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, §§ 29-30, Series A no. 269). This is not the case in the present application, which discloses no element of arbitrariness. Moreover, the Court considers that the subsidiary nature of its role prevents it from commenting on the criteria by which the domestic courts must have determined the value of the expropriated land (see Yıltaş Yıldız Turistik Tesisleri A.Ş. v. Turkey, no. 30502/96, § 38, 24 April 2003; Ernekal v. Turkey (dec.), no. 52159/99, 18 March 2004; Mutu v. Turkey, no. 25984/03, §§ 26-27, 15 January 2008). It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  The applicants complained under Article 1 of Protocol No. 1 of the financial loss which they had allegedly suffered due to the delay in the payment of the additional compensation and of the insufficient interest rates applied.

The Court finds that, using the same method of calculation as in the case of Aka v. Turkey (23 September 1998, Reports of Judgments and Decisions 1998-VI) and having regard to the relevant economic data at the material time, on the date of the payment the amount of full compensation should have been TRL 9,113,495,168¹. However, the applicants received TRL 13,826,638,792² - 152 % of the full sum. In these circumstances, the Court observes that the applicants suffered no damage in respect of the amount of compensation awarded to them by the Adana Civil Court. The interest rate applied to the additional compensation was sufficient to compensate the applicants for any financial loss.

It follows that this complaint is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President