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European Court of Human Rights
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KEMAL TURHAN v. TURKEY - 4397/08 [2011] ECHR 1847 (3 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1847.html
Cite as:
[2011] ECHR 1847
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SECOND
SECTION
CASE OF KEMAL TURHAN v. TURKEY
(Application
no. 4397/08)
JUDGMENT
STRASBOURG
3 November
2011
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kemal Turhan v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley
Naismith, Section
Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4397/08) 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, Mr Kemal Turhan (“the
applicant”), on 15 January 2008. The applicant was represented
by Mr A.F. Demirkan, a lawyer practising in Bursa. The
Turkish Government (“the Government”) were represented by
their Agent.
On
12 June 2009 the President of the
Second Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1961 and lives in Bursa.
In
2004 the General Directorate of Highways seized a plot of land
belonging to the applicant without any formal expropriation, for the
construction of a highway. The applicant brought an action before the
Karacabey Civil Court to obtain compensation for the de facto
expropriation of his property. He requested 5,500 Turkish liras (TRY)
as compensation from the court and reserved his right to increase
this claim in due course.
On
15 June 2006 the Karacabey Civil Court awarded the applicant TRY
5,500 as compensation for the de facto expropriation of his
land, as requested, plus interest. The applicant initiated execution
proceedings before the Bursa Execution Office to obtain that amount
(file no. 2009/2810).
On
13 March 2007 the Court of Cassation upheld the judgment of the
first-instance court.
The
applicant subsequently brought an additional action (“ek
dava”) before the Karacabey Civil Court to obtain further
compensation for his land in the light of the expert report obtained
during the previous proceedings, which had valued the land at a rate
higher than that initially requested by him.
On
24 May 2007 the Karacabey Civil Court awarded the applicant TRY
36,896.75, plus interest. The applicant initiated another set of
execution proceedings before the Bursa Execution Office to obtain the
amount awarded (file no. 2007/6187).
On
16 October 2007 the Court of Cassation upheld the judgment of the
Karacabey Civil Court.
On
23 March and 13 November 2009 the administration paid TRY 8,920
and 53,081 respectively. According to the information provided by the
applicant, there has been no outstanding debt in the execution files.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The
applicant complained that the authorities’ prolonged failure to
fully comply with the binding and enforceable judgments in his favour
violated his right to a court under Article 6 of the Convention and
his right to the peaceful enjoyment of his possessions under Article
1 of Protocol No.1.
The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and are
not inadmissible on any other grounds. They must therefore be
declared admissible.
The
Court observes that even though the authorities discharged the final
payment on 13 November 2009 of the debt arising from Karacabey Civil
Court’s judgments, the Government failed to make any
submissions which would justify the delay of twenty four months in
the enforcement of the judgments in the applicant’s favour.
The
Court notes 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; and Burdov
v. Russia (no. 2), no. 33509/04, §§ 65-88, 15
January 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
authorities’ failure to duly execute the judgments of Karacabey
Civil Court.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
The
applicant claimed TRY 20,000 (approximately 9,500 euros (EUR)) in
respect of pecuniary damage, corresponding to the potential rental
income he had been deprived of since the de facto expropriation of
his land. As regards non-pecuniary damage, the applicant claimed that
he had suffered distress and hardship on account of the non-payment
of the domestic judgment debts and requested compensation for this in
an amount to be determined by the Court. As for costs and expenses,
the applicant requested the Court to make an award for the work
conducted by his lawyers in the present case, leaving the amount to
be determined by the Court.
The
Government contested these claims.
The
Court notes that it has found a violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 by reason of the
delayed execution of final judicial decisions.
The
Court further notes that where a domestic judgment in an applicant’s
favour was executed, the Court does not make any award in respect of
initial judgment debt. In this respect, the Court does not discern
any causal link between the violation found and the pecuniary damage
alleged; it, therefore, rejects this claim.
On
the other hand, the Court considers that the applicant must have
suffered some non-pecuniary damage which cannot be sufficiently
compensated by the finding of a violation alone. Consequently, taking
into account the circumstances of the case, in particular the period
of delay in the enforcement of domestic court judgments, and making
its assessment on an equitable basis, the Court awards the applicant
EUR 2,400 as non-pecuniary damage.
As
for costs and expenses, the Court notes that according to its case
law, an applicant is entitled to reimbursement of his or her costs
and expenses only in so far as it has been shown that these have been
actually and necessarily incurred and were reasonable as to quantum.
In the present case, regard being had to the lack of any quantified
submissions, the Court makes no award under this head.
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 application
admissible;
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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400 (two thousand four
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 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
