Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23887/94

by Süleyman EGE

against Turkey

The European Commission of Human Rights (First Chamber) sitting

in private on 5 March 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 February 1994

by Mr. Süleyman Ege against Turkey and registered on 14 April 1994

under file No. 23887/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen born in 1931 and resident in

Ankara, is a publisher.

The facts as submitted by the applicant may be summarised as

follows.

In 1982 the Ankara Martial Law Command ordered the seizure of 30

different books published by the applicant and forcibly closed the

premises of his Publishing House. 133.607 copies of these books were

seized by the police on the orders of the Martial Law Command.

On 26 May 1985 the National Security Committee had decided to

lift the Martial Law as from 3 July 1985.

On 28 May 1985 the Ankara Martial Law Command ordered the

destruction of the seized books.

On 3 June 1985 the books were burnt and completely destroyed

under the supervision of three military and one civilian staff of the

Ankara Martial Law Command.

On 8 August 1985 the applicant applied to the Prime Minister's

Office and asked for compensation of his losses. His request remained

unanswered.

On 28 November 1985, the applicant instituted proceedings for

compensation against the Prime Minister's Office. Without prejudice to

claim the damages in excess, he asked for a compensation of 115 million

Turkish Lira for pecuniary damages, being the estimated value of the

destroyed books as on October 1985, and 25 million Turkish lira for non

pecuniary damages. He also claimed legal interest to run as from 28

August 1982.

In a decision dated 27 June 1989 the Ankara Administrative Court,

found the Prime Minister's Office responsible for the damages. It,

however, granted the applicant only 35.481.450 Turkish Lira as

compensation for pecuniary damages. The Court, based its assessment of

the damages on the estimated 1982 value of the books. It found no

grounds to grant compensation for non-pecuniary damages.

The applicant appealed.

In a decision dated 17 April 1990 the Council of State quashed

the decision of the Ankara Administrative Court. As regards the

pecuniary damages, it held that the compensation should have been

assessed on the basis of 1985 value of the books. It also held that

applicant's claim for non-pecuniary damages should have been granted.

The Ankara Administrative Court, having regard to the decision

of the Council of State, applied for an expert opinion in order to have

the damages suffered by the applicant evaluated. In a report dated

7 June 1991, the experts stated that the value of the books in 1985 was

of 121.637.695 Turkish Lira. In a report dated 8 July 1991, the

experts, in addition to their prior conclusion, commented that the

estimated 1991 value of the books at question was not less than

2.067.840.815 Turkish lira.

On 21 June 1991 the applicant submitted a statement to the Court,

whereby he requested, as his additional losses, the difference between

his original claim for pecuniary damages (115 million Turkish Lira plus

legal interest) and the then current value of the books estimated by

the Experts (2.067.840.815 Turkish Lira). He asserted that having

regard to the estimated then current value of the destroyed books, his

real losses could not be fully compensated, even if the Court would

grant his original claim.

On 26 September 1991 the Ankara Administrative Court decided that

the Prime Minister's Office should pay the applicant a compensation of

115.000.000 Turkish Lira for pecuniary damages together with legal

interest to be applied as from 8 August 1985. It also granted a

compensation of 25 million Turkish Lira for non-pecuniary damages. The

Court held that although the experts had commented that the value of

the books in 1985 was of 121.637.695 Turkish Lira, it was not

authorised by law to grant any amount in excess of the original claim.

The applicant appealed. He, inter alia, reiterated the arguments

which he had raised in his statement to the Ankara Administrative Court

dated 21 June 1991. The Administration also appealed and asserted that

the applicant was not entitled to any compensation.

In a judgment dated 7 April 1993, the Council of State dismissed

the appeal. It held that "the fact that the Ankara Administrative Court

had limited the award to 115.000.000 Turkish Lira, as claimed by the

applicant, did not contravene the Administrative Law.

The Administration requested the rectification of this decision

(karar düzeltmesi). The applicant did not apply for rectification or

make any submission in reply to the Administration's request.

On 20 October 1993 the Council of State dismissed the

Administration's request.

At the time when he lodged his application with the Commission,

the applicant had not received the compensation award. He has later

informed the Commission that he had finally received 458.233.000 Lira

as compensation for his losses, which included legal interest until the

date of payment. The applicant was paid 451.400.000 Lira on

1 March 1994 and 6.833.000 Lira on 20 July 1994.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that he did not have a fair trial in the proceedings for compensation

in that, the Ankara Administrative Court and the State Council failed

to consider his additional claim for compensation and while ruling on

the merits, failed to reply to his arguments.

2. The applicant also complains under Article 1 of Protocol No. 1

that the destruction of his books constituted an unjustified

deprivation of his possessions.

3. The applicant lastly complains under Article 1 of Protocol No.

1 of an unjustified interference with his right to respect for his

possessions to the extent that he has not been fully compensated for

his real losses arising from the destruction of his books. He asserts

in this regard that the rate of legal interest which applied to his

compensation claim for a period of nine years between the date of

introduction of his claim in 1985 and the date of payment in 1994 was

lower than the rates of inflation during that period.

THE LAW

1. The applicant complains that he did not have a fair trial in the

proceedings for compensation, in that the Court did not consider his

request for compensation for his additional losses and while ruling on

the merits, failed to reply to his arguments. He invokes Article 6

para. 1 (Art. 6-1) of the Convention which, in so far as relevant

provides:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing ... by [a]

... tribunal established by law".

The Commission notes that Turkey has recognised the competence

of the Commission to receive individual petitions under Article 25

(Art. 25) of the Convention only in relation to allegations made in

respect of the facts, including judgments which are based on such

facts, which have occurred subsequent to 28 January 1987. It must

therefore, in the first place, decide whether and to what extent it is

competent ratione temporis under Article 25 (Art. 25) of the Convention

to examine the applicant's complaints.

The Commission recalls that the proceedings before a court are

embodied in its final decision which thus incorporates any defect by

which they may have been affected (see, No. 6916/75, Dec. 8.10.76, D.R.

6, pp. 107, 111; see also, mutatis mutandis, H. v. Finland, Comm.

Report 5.4.95, para. 99). The Commission observes that in the present

case, the proceedings were concluded by the decision of the Court of

Cassation dated 20 October 1993, that is after Turkey's recognition of

the Commission's competence to receive individual petitions. Therefore

as regards the complaint in question, the proceedings at issue fall

within the Commission's competence ratione temporis.

However, the Commission recalls that in accordance with Article

26 of the Convention, "it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law ..." In particular, the

obligation to exhaust domestic remedies is limited to making normal use

of the remedies which are likely to be effective, adequate and

accessible (see e.g., No. 15117/89, Dec. 16.1.95, D.R. 80, p. 5).

The Commission recalls that in administrative proceedings in

Turkey, a request for rectification of judgment, in principle,

constitutes an effective and accessible remedy within the meaning of

Article 26 (Art. 26) of the Convention (cf. No. 20704/92, Kalaç v.

Turkey, Dec. 10.1.95, unpublished).

However, in the present case, the applicant did not apply for the

rectification of the Council of State's decision dated 7 April 1993 or

bring his arguments before the Council of State in reply to the

Government's petition for rectification. Moreover the Commission does

not find any special circumstances which could dispense the applicant

from the obligation to apply for the rectification of judgment in order

to exhaust domestic remedies (cf. No. 16278/90, Karaduman v. Turkey,

Dec. 3.5.93, D.R. 74, p. 93).

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also complains that the destruction of his books

amounted to an unjustified interference with his right to peaceful

enjoyment of his possessions. He invokes Article 1 of Protocol No. 1

(P1-1) which in so far as relevant reads as follows:

"Every natural ... person is entitled to the peaceful enjoyment

of his possessions. No one shall be deprived of his possessions

except in the public interest and subject to the conditions

provided for by law and by the general principles of

international law".

As the Commission observed above, Turkey has recognised the

competence of the Commission to receive individual petitions under

Article 25 (Art. 25) of the Convention only in relation to allegations

made in respect of the facts, including judgments which are based on

such facts, which have occurred subsequent to 28 January 1987.

In the present case, however, the Commission notes that the

destruction of the books took place on 3 June 1985, which is before the

afore-mentioned date.

It follows that this part of the application is outside the

competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

3. The applicant lastly complains of a violation of Article 1 of

Protocol No. 1 (P1-1) in that, he was not fully compensated for his

real losses arising from the destruction of his books in so far as the

rate of legal interest which applied to his compensation claim for a

period of nine years between the date of introduction of his claim in

1985 and the date of payment in 1994 was lower than the rates of

inflation during that period.

The Commission finds that in so far as the applicant's complaint

can be understood as relating to the adequacy of the sum awarded by the

national courts on 20 October 1993 as due to the applicant by way of

principal and interest, it falls outside the Commission's competence

ratione materiae, since until the national courts had determined that

compensation was payable and the amount of any such compensation, the

applicant had no "possession" within the meaning of Article 1 of

Protocol No. 1 (P1-1): at most he had a legitimate expectation that his

claim for compensation would be determined by the courts in accordance

with national law and this was fulfilled.

In so far as the complaint can be understood as being related to

the inadequacy of the legal interest which applied to the compensation

award from 20 October 1993 until the payment date, the Commission

observes that the major part of the compensation was paid on

1 March 1994, i.e., four months and ten days after the final decision.

Therefore the delay in the payment of the compensation award was not

unduly lengthy. The Commission further notes that the legal interest

continued to apply until the date of payment. In these circumstances,

the Commission finds that there has been no interference with the

applicant's right to peaceful enjoyment of his possessions within the

meaning of Article 1 of Protocol No. 1 (P1-1).

It follows that this part of the application manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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EGE v. TURKEY

EGE v. TURKEY

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