CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 novembre 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sAB55E796 { width:26.35pt; display:inline-block } .s6E8303AC { width:184.61pt; display:inline-block } .s5B081A9D { width:168.28pt; display:inline-block } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   SECOND SECTION DECISION Application no. 41034/06 İhsan IŞIK and Others against Turkey The European Court of Human Rights (Second Section), sitting on 5   November 2013 as a Committee composed of:   Dragoljub Popović, President,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Seçkin Erel, Acting Deputy Section Registrar, Having regard to the above application lodged on 28 September 2006, Having deliberated, decides as follows: THE FACTS The applicants, whose names and dates of birth appear in the appendix, are Turkish nationals who live in Batman, İzmir and Istanbul. They were represented before the Court by Mr S. Kaya, a lawyer practising in Batman. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On an unspecified date the National Water Board ( Devlet Su İşleri ) expropriated a plot of land belonging to the applicants jointly in Batman and decided to award them 3,463,000,000 Turkish liras (TRL [1] ) as expropriation compensation. On 2 April 2001 the applicants brought an action before the Batman Civil Court of First Instance seeking additional expropriation compensation of TRL 124,364,700,000, with interest. The Batman Civil Court of First Instance appointed two committees of experts during the proceedings, the first of which assessed the value of the applicants’ land at TRL 127,835,279,000, based on the market price of similar properties in the vicinity. Using the same method of valuation, the second committee opined that the applicants’ land was worth TRL   110,403,000,000. On 21 December 2001 the Batman Civil Court of First Instance partially granted the applicants’ request and awarded them TRL 73,819,083,000 as additional compensation for expropriation, plus statutory interest running from the date on which the action was brought. The court held that the experts had overvalued the land by erroneously comparing it to properties located in the heart of the city, whereas the property in question was 2 ‑ 3   km outside the city centre. The administration appealed against the judgment of the Batman Civil Court of First Instance. It appears that the applicants did not lodge an appeal request. On 2 October 2003 the Court of Cassation upheld the latter court’s judgment. On 12 August 2004 the applicants’ lawyer applied to the administration for the discharge of the judgment debt. Referring to the recent amendment of Article 46 of the Constitution on 17 October 2001, the lawyer demanded interest at the highest rate as laid down for State debts, running from the date on which the said amendment came into force. On 25 August 2004 the administration paid the applicants TRL   190,892,280,000, including statutory interest running from 2   April 2001, as opposed to the highest interest rate stipulated in Article 46 of the Constitution. The applicants subsequently initiated enforcement proceedings ( icra takibi ) against the administration before the Batman Execution Office, requesting the difference between the statutory interest rate and the rate set out in Article 46 of the Constitution, as of the introduction of this new interest on 17 October 2001. On 23 September 2004 the administration applied to the Batman Execution Court for the annulment of the enforcement proceedings, which they deemed to be unlawful. The administration stated that interest had been paid to the applicants on a statutory basis, as ruled expressly in the judgment of the Batman Civil Court of First Instance. The applicants’ request for supplementary interest was therefore groundless. They moreover claimed that even if the interest set out under Article 46 of the Constitution were to be applied in the instance case, that provision envisaged an award of high-rate interest only in cases of delayed payment, which in their opinion referred to the period after the finalisation of the judgment debt by the final decision of the Court of Cassation, as opposed to the date of enforcement of the relevant constitutional amendment (17 October 2001). On 11 February 2005 the Batman Execution Court requested an expert’s opinion on the correct rate of interest to be applied in the instant case. On 14 March 2005 the appointed expert delivered his opinion, where he confirmed the administration’s reasoning that the high interest rate stipulated under Article 46 of the Convention would only become applicable after the finalisation of the judgment. Accordingly, he calculated that the applicant was entitled to receive an additional interest of TRL   18,609,201,068 as of 25 August 2004, i.e. the payment date. The administration objected to the expert’s calculations, arguing that the amount should instead have been TRL 18,210,443,191. The applicants agreed with the administration’s objection. On 29 April 2005 the Batman Execution Court ordered a payment of TRL   18,210,443,191 to applicants, in addition to the amount they had received on 25 August 2004. The applicants appealed against the judgment of the Batman Execution Court, arguing that both the expert and the court itself had misinterpreted the application of Article 46 of the Constitution. On 30 June 2005 the Court of Cassation dismissed the applicants’ arguments but still quashed the judgment on account of a technical error. Recalculating the amount of additional payment in line with the decision of the Court of Cassation, the administration informed the Batman Execution Court that they would be paying the applicants TRY   27,204.04. The applicants did not object to the administration’s calculations. On 23 November 2005 the Batman Execution Court ordered that the applicants be paid TRY 27,204.04 as additional interest. The applicants appealed this judgment, reiterating their objections regarding the interpretation of Article 46 of the Constitution by the domestic courts. On 16 March 2006 the Court of Cassation upheld the judgment of the Batman Execution Court. There is no information in the case-file as to when this decision was notified to the applicants, but it appears that it was deposited with the registry of the first-instance court on 29 March 2006. On 12 April 2007 the applicants were paid TRY 58,224.41 in accordance with the Batman Execution Court’s ruling. B.     Relevant domestic law The relevant part of Article 46 of the Constitution, relating to expropriations, provides: “... Compensation for expropriation shall be paid immediately and in cash... If deferred payment is permitted by law ... interest for delay at the maximum rate laid down for State debts shall be payable on the part that is not paid immediately...” COMPLAINTS The applicants complained under Article 1 of Protocol No. 1 that they had suffered financial loss on account of the low interest rates applied by the domestic courts to the additional expropriation compensation, considering in particular that the relevant proceedings before the Batman Civil Court of First Instance had lasted 30   months and that the payment of additional compensation had been made with a further delay of 10   months following the finalisation of the proceedings. They further maintained under this provision that in determining the amount of additional expropriation compensation to be awarded, the Batman Civil Court of First Instance had considerably lowered the value set for their land by different experts. THE LAW 1.     The applicants complained under Article 1 of Protocol No. 1 that the proceedings for additional compensation before the Batman Civil Court of First Instance had lasted for an excessive length of time and that the amount of additional compensation awarded by the domestic court had failed to reflect the real value of their land as determined by various experts. The Court notes at the outset that the first part of this complaint concerning the length of the additional compensation proceedings falls to be examined under Article 6 § 1 of the Convention. Turning to the applicant’s complaint under Article 1 of Protocol No.   1 regarding the amount of additional compensation awarded, the Court observes that the relevant proceedings ended on 2 October 2003, when the Court of Cassation upheld the award made by the first-instance court and delivered its final decision on this matter. This complaint was, however, brought before the Court on 28 September 2006, that is more than six months after the final decision. As regards the complaint under Article 6 § 1 of the Convention, the Court notes that following its finalisation on 2 October 2003, the judgment in question was executed on 25 August 2004 upon payment of the additional compensation as determined by the first-instance court. While noting that the period of execution is also an integral part of the “trial” for the purposes of Article 6 of the Convention, including as regards the assessment of the reasonable time criterion (see Hornsby v.   Greece , 19   March 1997, § 40, Reports of Judgments and Decisions 1997-II), the Court observes that this complaint was also introduced more than six months after the execution of the judgment debt. It follows that both these complaints under Article 1 of Protocol No.   1 and Article 6 § 1 of the Convention have been lodged out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2.     The applicants complained under Article 1 of Protocol No. 1 that the delays encountered in the proceedings for additional expropriation compensation and the subsequent payment of the compensation, coupled with the low interest rates, had caused them to suffer a financial loss. The Court finds, using the same method of calculation as in the case of Aka v. Turkey (23 September 1998, §§ 55-57, Reports 1998 ‑ VI) and having regard to the relevant economic data at the material time, that the applicants should have received TRL   162,493,301,547 at the date of payment, i.e. 25   August 2004, to offset the adverse effects of inflation. The applicants were, however, paid the higher sum of TRL   190,892,280,000. Moreover, they were awarded a further amount of TRY   27,204.04 as additional interest, which they also received, with interest, on 12 April 2007. In these circumstances, the Court observes that regardless of the type of interest applied to the judgment debt, the applicants suffered no damage under Article   1 of Protocol No. 1 on account of the delays encountered during and after the proceedings, as the statutory interest rates at the relevant period were sufficient to compensate any potential losses arising from high inflation. 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.   Seçkin Erel   Dragoljub Popović Acting Deputy Registrar   President     APPENDIX -Applicants’ names and dates of birth-   1. İhsan IŞIK (1965) 2. İsmail IŞIK (1952) 3. Mehmet Ali IŞIK (1949) 4. Saliha IŞIK (1954) 5. Gevher ÖNEM (1965) 6. Gülsüm DEMİRTAŞ (1967) 7. Servet IŞIK (1973) 8. Hetike IŞIK (1968) 9. Burhan IŞIK (1963) 10. Bayram IŞIK (1965) 11. Refa TİLEN (1945) 12. Mehmet Yılmaz IŞIK (1961) 13. Ahmet IŞIK (1957) 14. Mehmet IŞIK (1969) 15. Cemile AKSOY (1952)   1.     On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.