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SAHIDE KORKMAZ v. TURKEY - 31462/07 [2011] ECHR 1108 (12 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1108.html
Cite as:
[2011] ECHR 1108
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SECOND
SECTION
CASE OF ŞAHİDE KORKMAZ v. TURKEY
(Application
no. 31462/07)
JUDGMENT
STRASBOURG
12 July
2011
This
judgment is final but it
may be subject to editorial revision.
In the case of Şahide Korkmaz
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
committee composed of:
David Thór Björgvinsson,
President,
Giorgio Malinverni,
Guido Raimondi,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 21 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31462/07) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Şahide Korkmaz
(“the applicant”), on 16 July 2007. The applicant was
represented by Mr T. Tepe and Ms. G. Aydın, lawyers practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
On
10 September 2009 the President of the Second Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in Istanbul.
On
an unspecified date in the late 1980s the General Directorate of
National Roads and Highways (Devlet Karayolları Genel
Müdürlüğü) (“the General
Directorate”) decided to partially expropriate the applicant’s
land located in the Küçükçekmece district of
Istanbul. The applicant only found out about this expropriation in
May 2004.
On
21 May 2004 the applicant brought a civil action before the
Küçükçekmece Civil Court for additional
expropriation compensation.
On
21 June 2004 the title to the property was transferred to the General
Directorate.
On
19 July 2005 the Küçükçekmece Civil Court
awarded the applicant 783,749,741,900 Turkish liras (TRL) as
additional compensation, plus interest at the statutory rate.
On
6 March 2006 the Court of Cassation upheld the first-instance court’s
judgment.
The
applicant subsequently initiated execution proceedings before the
Şişli Execution Office to obtain her additional
compensation.
On
31 July 2008 the applicant received a partial payment of 1,159,699.20
Turkish liras (TRY).
On
5 August 2008 the applicant brought a case before the Şişli
Execution Court in respect of the General Directorate’s
outstanding debt and the interest rate that should be applied to that
amount.
On
24 October 2008 the Şişli Execution Court held that the
General Directorate had an outstanding debt of TRY 479,605.44,
payable with an interest rate of 30%
running from 31 July 2008.
On
14 November 2008 the General Directorate appealed the judgment of the
Şişli Execution Court. On 2 June 2009 the Court of
Cassation upheld that judgment.
On
12 April 2010 the General Directorate paid the applicant
TRY 745,797.18 to discharge its outstanding debt, together with
interest.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law and practice are set out in the cases of Akkuş
v. Turkey (judgment of 9 July 1997, Reports of Judgments and
Decisions 1997-IV); Aka v. Turkey (judgment of 23 September
1998, Reports 1998-VI); Gaganuş and Others v. Turkey (no.
39335/98, §§ 15-19, 5 June 2001); Ak v. Turkey (no.
27150/02, §§ 11-13, 31 July 2007); Sarıca and
Dilaver v. Turkey, no. 11765/05, § 26, ECHR 2010 ...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The
applicant complained under Article 1 of Protocol No. 1 of the delay
with which the domestic authorities executed the domestic court
judgment in her favour, and the financial loss brought about by this
delay on account of the low interest rates.
The
Government contested these arguments, maintaining that the domestic
procedure had been carried out in accordance with the Expropriation
Act (Law no. 2942) and the relevant provisions of the Constitution.
The
Court finds it appropriate to examine these complaints under
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 (see Miroshnik v. Ukraine, no. 75804/01, §§
40 and 41, 27 November 2008).
A. Delayed execution of the domestic court judgment
The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
As
regards the merits, the Court notes that the authorities effected the
first payment two years and three months after the Court of
Cassation’s final decision and that the second payment was made
more than four years after the said decision. The Government’s
submissions do not contain any justification for such substantial
delays in the enforcement of the judgment in the applicant’s
favour.
The
Court observes that it has frequently found violations of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1 in cases
raising issues similar to those raised in the present case (see, for
instance, Burdov v. Russia, no. 59498/00, §§ 34-42,
ECHR 2002-III; Kaçar and Others v. Turkey, nos.
38323/04, 38379/04, 38389/04, 38403/04, 38423/04, 38510/04, 38513/04,
and 38522/04, §§ 22-25, 22 July 2008; Burdov v. Russia
(no. 2), no. 33509/04, §§ 65-88, ECHR 2009 ...). There
are no arguments in the case capable of persuading the Court to reach
a different conclusion.
Accordingly,
the Court finds that there has been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 on account of the
delayed enforcement of the judgment of the Küçükçekmece
Civil Court of 19 July 2005.
B. Financial loss caused by the delayed payment
The
Court finds that, using the method of calculation adopted in the case
of Akkuş (cited above, §§ 35 and 36) and having
regard to the relevant economic data, including the interest and
inflation rates, at the material time, the applicant received more
than 100% of the full compensation owed to her on the date of the
second payment. Therefore, she suffered no financial damage on
account of the delayed payment of the compensation awarded by the
Küçükçekmece Civil Court.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
The
applicant claimed 1,000,000 euros (EUR) in respect of pecuniary
damage and EUR 50,000 for non-pecuniary damage. She also claimed EUR
25,000 for the costs and expenses incurred before the Court. She did
not submit any documents to substantiate her claims.
The
Government contested these claims as unsubstantiated and excessive.
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. However, ruling on an equitable basis, it awards the applicant
EUR 3,500 in respect of non-pecuniary damage.
As
for costs and expenses, the Court makes no award under this head as
the applicants have failed to substantiate their claims.
B. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the delayed
execution of the domestic court judgment under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 3,500 (three thousand five hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Turkish liras at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos David Thór
Björgvinsson Deputy Registrar President
