AS TO THE ADMISSIBILITY OF
by İsmail COŞAR
The European Court of Human Rights (Second Section), sitting on 29 September 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 28 May 2004,
Having deliberated, decides as follows:
The applicant, Mr İsmail Coşar, is a Turkish national who was born in 1942 and lives in Istanbul. He is represented before the Court by Mr A. Yum and Mr Y. Güneş, lawyers practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 October 1995 the Governorship of Istanbul expropriated a 204 sq. m plot of land belonging to the applicant (block no. 19, plot no. 7793), located in the Kocasinan Soğanlıbahçe region of Bahçelievler, Istanbul. It assessed the value of the land at 224,400,000 Turkish liras (TRL)1.
On 14 February 1996 the administration sought to notify the applicant of the expropriation decision through the notary public. However, this notification did not reach the applicant as the service was made to a wrong address.
On 20 December 1999 the applicant’s representative obtained the expropriation decision from the Istanbul Sixteenth Notary Public in person and the expropriation was thus finalised.
On 19 January 2000, within the thirty-day prescription period stipulated in section 14 of the Expropriation Act (Law no. 2942), the applicant brought an action before the Bakırköy Civil Court for additional compensation. He requested TRL 3,855,600,0002 and reserved the right to increase his claim.
On 14 February 2000 the ownership of the impugned plot of land was transferred to the administration in the title deed register.
On 16 February 2000 the administration paid the applicant TRL 224,400,0003 as compensation for expropriation.
On 26 December 2001 the committee of experts appointed by the first instance court assessed the value of the land at TRL 70,000,0004.
Given the considerable discrepancy between this evaluation and that of the administration, the court appointed another committee of experts. This new committee conducted an examination on 29 April 2002 and valued the land at TRL 30,498,000,0005.
On 24 May 2002 the Bakırköy Civil Court accepted the applicant’s claim and awarded him TRL 3,855,600,0006 in additional compensation, plus interest at the statutory rate, running from 20 January 2000. This court stated that, although the value of the land had been assessed as much higher in the expert reports, the applicant was bound by his original claim of TRL 3,855,600,000, and thus it could not award him a higher amount.
On 3 June 2003 the Court of Cassation upheld the judgment of the first-instance court.
On 10 November 2003 the Court of Cassation rejected the applicant’s request for rectification of its previous decision. This decision was served on the applicant on 5 December 2003.
On 31 December 2003 the administration paid the applicant TRL 12,708,078,0007 in additional compensation, together with interest.
B. Relevant domestic law and practice
1. The Expropriation Act (Law no. 2942 of 4 November 1983)
Section 14 of the Expropriation Act provides:
“Right of action
Section 14: The owner ... of an expropriated property may, within thirty days of notification [of an expropriation], bring an action to ... challenge the amount of compensation assessed [by the authorities].”
2. Constitutional Court decision of 20 July 1999
On 20 July 1999 the Constitutional Court declared unconstitutional the last sentence of Article 87 of the Code of Civil Procedure, according to which a plaintiff could not increase his or her claim during proceedings by way of an amendment (“ıslah”). The Constitutional Court reasoned as follows:
“The [local] court requesting the review maintained that the impugned rule was contrary to Article 141 of the Constitution as it forced plaintiffs to initiate a new case and unduly burdened the judiciary.
By not allowing a claim to be increased through amendment, the impugned rule prevents cases from being resolved as promptly and cost-effectively as possible, and thereby violates Article 141 of the Constitution.
The rule that prevents plaintiffs from increasing their original claims through ‘amendment’ is contrary to the principle of the rule of law as it makes it unduly difficult to claim a right.
The impugned rule forces a plaintiff to reinitiate the case from the very beginning and, as such, it restricts the freedom to seek a legal remedy.
As the rule prevents plaintiffs from receiving redress as promptly and cost effectively as possible, it significantly impedes the freedom to seek a legal remedy, which is irreconcilable with the requirements of a democratic society...”
3. Article 141 of the Turkish Constitution
“... It is the duty of the judiciary to conclude trials as quickly as possible and at minimum expense.”
4. Code of Civil Procedure
“Article 83: Either of the parties may partly or entirely amend a procedural act. Each party may use the right of amendment only once during the proceedings.”
“Article 84: For cases subject to investigation, amendment may be made up to the end of the investigation, for all other cases, it may be made up to the end of the trial.”
5. Case-law of the Court of Cassation
The Court of Cassation has held that in cases concerning additional expropriation compensation requests for the amendment of the original claim or for the lodging of an additional action regarding that claim must be made within the same thirty-day prescription period stipulated for the lodging of the action for additional compensation under section 14 of the Expropriation Act (see, for example, the judgments of the 5th Civil Division on 11 April 2002 – 2002/1612 E., 2002/8676 K; the 18th Civil Division on 15 October 2002 -2002/7971 E., 2002/9752 K; the 5th Civil Division on 20 March 2006 – 2005/14358 E., 2006/3122 K.).
The applicant complained under Article 6 § 1 of the Convention that the proceedings had not been concluded within a reasonable time.
The applicant maintained under Article 1 of Protocol No. 1 that the delay in the payment of the additional compensation, coupled with the low interest rates, had caused him to suffer financial loss.
The applicant further alleged under Article 1 of Protocol No. 1 that the period of time which had elapsed between the adoption of the expropriation decision and the actual payment of the initial expropriation compensation had been excessive and had thus caused him financial loss.
Lastly, the applicant contended under Article 1 of Protocol No. 1 that the additional compensation awarded by the Bakırköy Civil Court had not reflected the real value of the land, mainly because this court had limited its finding to his original claim without taking into account that he had reserved his right to increase his claim.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court notes that the proceedings began on 19 January 2000, when the applicant brought an action in the Bakırköy Civil Court for additional compensation, and ended on 10 November 2003 with the Court of Cassation decision. The relevant period thus lasted three years, nine months and twenty-two days before two instances, which examined the case three times.
The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, including its complexity, the applicant’s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
Examining the overall duration of the proceedings - a period which does not seem prima facie unduly long in the light of the case-law of the Convention organs -, as well as the fact that the case was examined three times, that rectification was not a remedy which the applicant was expected to pursue (see, among others, Gök and Others v. Turkey, nos. 71867/01, 71869/01, 73319/01 and 74858/01, §§ 47-48, 27 July 2006), and taking also into account that no substantial periods of inactivity were attributable to the State authorities, the Court considers that the overall length of the proceedings does not disclose any appearance of a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, Konibolotskiy v. Russia (dec.), no. 74828/01, 4 October 2005, and Chernykh v. Russia (dec.), no. 64672/01, 5 June 2007).
It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
The Court observes that, according to the calculation method adopted in the judgment of Aka v. Turkey (23 September 1998, Reports of Judgments and Decisions 1998 VI), on the date of the payment the amount of full compensation for the applicant should have been TRL 13,324,478,066. The applicant received TRL 12,708,078,000, which is 95.37 % of the full compensation.
In the light of the Court’s findings in the Arabacı v. Turkey case (see Arabacı v. Turkey (dec.), no. 65714/01, 7 March 2002), the Court considers that such a minor difference (less than 5%) between the above mentioned amounts can be considered to have resulted from the methods of calculation used by the Court and the national authorities. In these circumstances, the Court is of the opinion that the total amount of money paid to the applicant was satisfactory even if it did not seem to constitute full compensation (see Gül and Others v. Turkey (dec.), no. 44715/98, 18 March 2004).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court notes in the first place that the applicant does not substantiate his allegations as to how his property rights have been adversely affected as a result of this delay, considering particularly that the ownership of the property was transferred to the administration only upon payment of the relevant compensation and not at the time of the adoption of the expropriation decision.
The Court further notes that the applicant has not brought this complaint to the attention of the national authorities as required under Article 35 § 1 of the Convention. Even assuming that there were no effective remedies in the present case, the applicant should have applied to the Court within six months of the act complained of (see, mutatis mutandis, Hazar and Others v. Turkey (dec.), no. 62566/00, ECHR 2002-II) rather than waiting four years to lodge his application on 28 May 2004.
The Court therefore finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matter complained of is within its competence.
It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint under Article 1 of Protocol No. 1 concerning the failure of the domestic courts to award him the real value of his expropriated land;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise Tulkens
1. Approximately ECU 3,500 at the material time.
2. Approximately 6,950 euros (EUR) at the material time.
3. Approximately EUR 405 at the material time.
4. Approximately EUR 55,000 at the material time.
5. Approximately EUR 25,535 at the material time.
6. Approximately EUR 3,020 at the material time.
7. Approximately EUR 7,320 at the material time.