AS TO THE ADMISSIBILITY OF
by Ahmet Siyavuş Ataç AYKUT and Others
The European Court of Human Rights (Second Section), sitting on 15 September 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Ahmet Siyavuş Ataç Aykut, Mr Feridun Gürbüz Aykut and Ms İstiklal Türkan Semercioğlu, were Turkish nationals who lived in Istanbul. By a letter of 2 July 2008 the Court was informed that Mr Feridun Gürbüz Aykut had died on 23 May 2006 and that his heirs, Ms Altan Aykut, Ms Mihriban Tulu Kortel (Aykut) and Ms Tuba Hacer Öztürk (Aykut), wished to pursue his application. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1999 the Municipality of Eyüp (“the Municipality”) expropriated a plot of land belonging to the applicants (block no. 34, plot no. 9) in Eyüp, Istanbul.
On 3 December 1999 the applicants brought an action before the Eyüp Civil Court of First Instance for additional compensation.
On 19 October 2000 the Eyüp Civil Court awarded the applicants additional compensation of 135,252,529,000 Turkish liras (TRL) plus interest at the statutory rate, running from 3 December 1999.
On 20 February 2001 the Court of Cassation upheld the judgment of the first-instance court.
The administration subsequently requested rectification of the decision of the Court of Cassation.
On 18 May 2001 the Court of Cassation dismissed the administration’s rectification request.
On 19 November 2002 the applicants signed a document of discharge (ibraname; “the discharge”) indicating that they had received three separate cheques from the Municipality in the amounts of TRL 75,752,483,879, TRL 4,130,202,850 and TRL 300,000,000,000 respectively as additional expropriation compensation, and releasing the Municipality from all liability in relation to the compensation claim. The applicants thereby stated that they had no outstanding rights or claims against the Municipality which might become the subject matter of further legal or enforcement proceedings.
On 16 December 2002 the applicants collected the cheque of TRL 300,000,000,000.
B. Relevant domestic law
The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (9 July 1997, Reports of Judgments and Decisions 1997 IV); Aka v. Turkey (23 September 1998, Reports 1998 VI); and Gaganuş and Others v. Turkey (no. 39335/98, §§ 15 19, 5 June 2001).
The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been paid insufficient interest on additional compensation received following the expropriation of their lands, which had the effect of reducing the value of their compensation through the effect of inflation, and that the authorities had delayed in paying them the relevant amounts.
I. LOCUS STANDI
The Court notes that one of the applicants, Mr Feridun Gürbüz Aykut, died on 23 May 2006 and that his heirs, namely Ms Altan Aykut, Ms Mihriban Tulu Kortel (Aykut) and Ms Tuba Hacer Öztürk (Aykut), expressed their wish to pursue the application. The Government did not contest the applicant’s heirs’ standing before the Court. Consequently, the Court holds that these heirs have standing to continue the present proceedings in the applicant’s stead. However, Mr Feridun Gürbüz Aykut will continue to be referred to as the applicant.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The applicants complained under Article 1 of Protocol No. 1 to the Convention that the excessive delay in the payment of the additional compensation, coupled with the low interest rates, had caused them to suffer a financial loss.
The Government contested that argument and asked the Court to declare the application inadmissible for, inter alia, lack of victim status within the meaning of Article 34 of the Convention in view of the discharge signed by the applicants on 19 November 2002.
The applicants stated in reply that they had felt obliged to sign the discharge in order to receive their money without any further delay. They further alleged that after receiving the cheque of TRL 75,752,483,879 indicated in the discharge, they were asked to endorse it to a third person as a precondition to receiving the cheque of TRL 300,000,000,000 and that they only agreed to this arrangement in order to obtain the bulk of the debt owed to them, which they collected on 16 December 2002.
The Court notes that on 19 November 2002 the applicants indeed signed a discharge absolving the Municipality of all financial liability in relation to the additional compensation ordered by the first-instance court in return for a certain sum of money. Through the said discharge, the applicants also waived their rights to take any further enforcement or legal proceedings vis-à-vis the Municipality for the claim in question.
The Court has found in the past that signing of such documents where a person voluntarily renounced further use of local remedies against the administration would result in the deprivation of that person of his or her victim status (see, among others, Hüseyin Sarı v. Turkey (dec.), no. 14798/03, 29 September 2005, and Arıcı and Others v. Turkey, no. 35528/03, §§ 20-22, 28 April 2009). The Court finds no reason to depart from its settled case-law on this matter in the instant case. The Court notes particularly in this regard that the applicants’ acquiescence to the alleged transfer of the cheque of TRL 75,752,483,879 does not affect its findings in relation to the loss of victim status. It is the Court’s understanding that it was within the applicants’ discretion whether to forsake the said amount or to reject such an arrangement and claim the compensation in its entirety, and the applicant opted for the former. The Court is of the opinion that the applicants did not act under constraint when they renounced the possibility of obtaining higher compensation and the applicants do not claim otherwise. It appears that the applicants agreed to this concession with the full intention of getting the major part of their compensation at once and settling the dispute with the Municipality, albeit at a loss. In the Court’s eyes, the applicants’ claims under Article 1 of Protocol No. 1 were satisfied to a great extent through that settlement.
It therefore follows that the applicants’ complaint regarding the alleged damage suffered on account of the delayed payment of additional compensation is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention as the applicants can no longer be considered as victims in view of the discharge which they signed on 19 November 2002.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally Dollé Françoise Tulkens