CEDH · CASELAW;CLIN;ENG — 6 juillet 2010

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Turkey - 40349/05 Judgment 6.7.2010 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Deprivation of property Disproportionate burden on applicants resulting from depreciation of compensation for expropriation between date of assessment and date of settlement, with no default interest: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required to take general measures to remedy depreciation of compensation for expropriation   Facts – In 2000 the administrative authorities declared that it was in the public interest to expropriate farmland belonging to the applicants with a view to building a motorway. In 2002 the authorities asked a district court to assess the amount of compensation for the expropriation. The court determined the value of the land as of the date on which the authorities had applied to it and, in a judgment assessing the amount of the award, directed that that sum was to be paid to the applicants and that the authorities were to be entered in the land register as owners of the land. In 2003 the Court of Cassation quashed that judgment, holding that the amount of compensation was insufficient. In 2004 the district court found that the value of the land on the date of the original application had been more than twice as high as the previous assessment and ordered the difference to be paid, but rejected the applicants’ request under the Constitution for interest to be payable on the additional sum at the maximum rate applicable under domestic law. In 2005 the Court of Cassation dismissed an appeal on points of law by the applicants. At the material time there was a very high rate of inflation in Turkey. Law – Article 1 of Protocol No. 1: The applicants had been deprived of their property in accordance with the law and in pursuance of a legitimate aim in the public interest. It remained to be determined whether they had had to bear a disproportionate and excessive burden as a result of the alleged depreciation in the value of the compensation between the date of its assessment and the date of its payment. As to the non-application of the Constitution, the maximum rate of default interest applicable under domestic law was payable only if a final award of compensation for expropriation remained unpaid; that had not been the case in this instance. As to the loss in value of the compensation awarded, seeing that the applicants had been paid the compensation in two separate sets of proceedings, the 2002 and 2004 judgments had to be considered separately. No default interest had been payable on the compensation awarded in 2002, despite the fact that during the period between the date of the application to the court and the judgment the average annual rate of inflation had been 31.5%, with the result that the sum awarded had decreased in value by 14.68%. The fact that the court had taken six months to determine the compensation was not unreasonable. Furthermore, even if the applicants had been able to continue using the land during the proceedings – which had not been the case – that would not have been sufficient to offset such a loss. Nor could the applicants have claimed default interest at the statutory rate, since the legislation on expropriation did not provide for that possibility. Lastly, no legitimate public-interest consideration could have justified payment of an amount lower than the market value of the land. Accordingly, the difference between the value of the compensation for the expropriation on the date of the application to the court and its value at the time of the actual payment was due to the lack of default interest. That difference had caused the applicants to bear a disproportionate and excessive burden which had upset the requisite fair balance between the protection of the right of property and the demands of the general interest. As to the additional compensation awarded in 2004, no default interest had been payable on that amount either, although the average annual rate of inflation had been 15% between the date of the application to the court and the second judgment, during which period the sum in question had decreased in value by approximately 43%. The applicants had thus had to bear a disproportionate and excessive burden that could not be justified by a legitimate general interest on the part of the authorities. Conclusion : violation (unanimously). Article 46: The violation found by the Court had originated in a systemic problem connected with the absence in domestic law of a mechanism whereby the national courts could take account of the potential depreciation in the value of compensation awarded for expropriation, as a result of the combined effect of the length of proceedings and inflation. More than 200 similar cases possibly giving rise to a finding of a violation were currently pending before the Court, and the deficiencies in domestic law identified in the present case could lead to a large number of subsequent applications. General measures at national level would undoubtedly have to be adopted in order to execute the judgment in this case. Without prejudice to any other measures that the respondent State might envisage, the most appropriate form of redress would be to incorporate into the Turkish legal system a mechanism for taking account of potential depreciation in the value of compensation for expropriation as a result of the combination of factors referred to above. This aim could be achieved, for example, by charging default interest to offset such depreciation or, failing that, by awarding appropriate redress for losses sustained by those concerned. Article 41: EUR 16,000 in respect of pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes