SECOND SECTION

CASE OF MUSA TARHAN v. TURKEY

( Application no. 12055/17 )

JUDGMENT

STRASBOURG

23 October 2018

FIN AL

18/03/2019

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 Musa Tarhan v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Robert Spano, President, Ledi Bianku, Işıl Karakaş , Paul Lemmens, Valeriu Griţco , Jon Fridrik Kjølbro , Ivana Jelić , judges, and Hasan Bakırcı , Section Registrar ,

Having deliberated in private on 23 October 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 12055/17) 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 Musa Tarhan (“the applicant”), on 26 January 2017.

2 . The applicant was represented by Mr A. Aktay and Mrs U Aktay , lawyers practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent .

3 . The applicant alleged a violation of his right to the peaceful enjoyment of his property .

4 . On 15 June 2017 notice of the application was given to the Government .

THE FACTS

5 . The applicant was born in 1955 and lives in Konya.

6 . The facts of the case as set out by the parties may be summarised as follows.

7 . Th e applic ant owned real property covering an area of some 107 m² in Hadim , corresponding to plot no. 48 , section 161.

8 . On 19 December 2008 the Water Directorate General ( Devlet Şu İşleri Genel Müdürlüğü ) decided to expropriate that plot of land .

9 . On 20 July 2008 the relevant authority , that is to say the Appraisal Commission ( kıymet takdir komisyonu ), estima ted the value of the property at 843 . 58 Turkish liras (TRY).

10 . On 12 August 2009, seeking to order emergency expropriation , the authorities applied to the Hadim Regional Court (“ HRC ” ) for authorisation to take possession of the land before the deed transfer .

11 . On 28 September 2009 the HRC authorised the takeover of the land and ord ered the authorities to make a down-payment of TRY 866 . 09 to the applicant .

12 . On 9 February 2012, in accordance with the then current regulations , the applic ant was invited to negotiate with the authorities with a view to a f r iendly settlement on the amount of the award in compensation .

13 . The applic ant stated that he had rejected the authorities ’ offer .

14 . Th e Government submitted that the applicant had refused to take part in th e negotiation .

15 . Be that as it may , in the absence of agreement between the parties, on 24 December 2013 the authorities applied to the HRC to set the amount of the award and to transfer t he deed .

16 . Th e applic ant, represented by counsel , alleged that the actual value of his property was much higher than the amount of TRY 843 . 58 fixed by the authorities .

17 . Le 22 September 2014, at the end of the proceedings , the HRC ord ered the transfer of the property deed in question to the authorities , and set the amount of t h e award in compensation at TRY 2 , 515 . 38.

18 . As regards legal fees ( avukatlık vekalet ücreti ), the court ordered the parties to pay each other a lump sum of TRY 1 , 500 .

19 . On 7 June 2016 the Court of C assation dismissed the appeals against that judgment .

20 . On 25 July 2016 the applic ant lodged an appeal with the Constitutional Court alleging that the judicial decision ordering him to pay the authorities TRY 1,500 in respect of legal fees had breached his rights, particularly th at to peaceful enjoyment of hi s property.

21 . He argued that he could not be held responsible for the commencement of the judicial proceedings . Indeed, he had been right to reject the sum offered by the authorities given that the HRC had ultimately set the award at almost three times that amount.

22 . In support of his pleas he presented two judgments delivered by the 18 th Civil Chamber of the Court of Cassation on 20 November 2012 which had criticised judgments ordering expropriated persons to refund the expropriating authorities ’ legal fees.

23 . The applicant also submitted that pursuant to section 29 of the Law on expropriation, costs and expenses appertaining to expropriation should be borne by the expropriating authorities . He argued that legal fees fell within the concept of costs and expenses arising out of expropriation.

24 . Moreover , referring to the judgment in the case of Perdigão v . Portugal [GC] (n o. 24768/06 , 16 November 2010 ), he emphasised that a considerable proportion of his expropriation compensation had been absorbed by the lump-sum refund of the authorities ’ legal fees .

25 . F in ally , the applicant pointed out that the fact that the authorities had also been ordered to pay him the same sum was not such as to restore any kind of balance. In that connection, he stated that under the Attorneyship Law (section 164), sums which one party was ordered to pay in respect of legal fees for the other party were payable ipso jure not to the opposing party but to counsel for that party.

26 . That appeal was dismissed by a two- judge committee on 29 November 2016.

27 . The Constitutional Court , which decided to assess the complaint in the light of the right to a fair trial, and in particular from the angle of the right of access to a tribunal, observed that the fact of imposing the payment of legal fees on the party having lost the cas e pursued the legitimate aim of preventing unnecessary logjams in the courts and enabling the latter to hear and determine the cases before them within reasonable time-limit s.

28 . Where expropriation was concerned , the lawmaker had endeavoured to prioritise transfer ring property deeds on a friendly basis. Where no friendly agreement had been reached between the parties , the citizen risked being sued . That was why, at the end of this type of proceedings , each party was ordered to pay the other ’ s legal fees . The Court of Cassation had established case-law on that practice , as witness, for example , a judgment delivered by the 5 th Civil Chamber on 4 May 2009 (E.2009/4315 K.2009/6884) , and had therefore been foreseea ble.

29 . Although the lump-sum payable in respect of legal fees had been comparatively large as compared with the expropriation award , i t should be borne in mind that the expropriating authority had also been order to pay the same su m . This had prevented any decrease in the expropriation award to the applic ant.

30 . Under those circumstances , the appeal had been manifest ly ill-founded and had to be declared i nadmissi ble.

A. E xpropriation

31 . Section 8 of Law n o. 2942 on E xpropriation provides that where an authority wishes to expropriate a property, it must prioritise the purchase procedure .

32 . Under that procedure , which is described in section 8, a commi ttee of experts appointed by the expropriating authority ( known as the Appraisal C ommission ) estimates the value of the property . Th e owner is then invited to negotiate the amount of the award in compens ation with the authority , failing which the total estimated amount is notified to him or her . In the event of an agreement between the parties, compensation is awarded to the owner only if he agrees to the transfer of the deed on to the land register .

33 . The 5 th paragraph of section 8 provides that the agreed amount must not exceed the sum estimated by the Appraisal C ommission.

34 . Section 10 of the Law provides:

“ Where the property has not been expropriated under the purchase procedure , the administration ... s hall apply to the regional court responsible for the area in which the property [ to be expropri at e d ] is located seeking a decision on the amount of compensation payable for the expropriation and the registration of the property [ in the land register ] in the name of the authority in return for the cash payment ... of that amount . ”

35 . Section 27 of the Law provides that the authorities may , in urgent situations, la wfully use a privat e property before having complied with all the requisite formalities for the standard expropriation procedure . In the framework of this so-called “ urgent expropriation ” procedure, the authorities must apply to a court for authorisation to take possession of the property . As such authorisation does not lead to the transfer of ownership of the land to the expropriating authority , the latter must negotiate the transfer with the owner, and where no agreement is reached , it must follow the procedure set out in section 10.

36 . Section 29 of the Law states that judges ’ daily travel allowances , experts ’ fe es, land registr ation fees “ and other costs incurr ed under the present Law must be borne by the expropriating authority” .

B. Costs and expens es

37 . Article 326 of the C ode of Civil Procedure provides that costs and expenses must be borne by the losing party . If none of the parties wins outright, the costs and expens es must be apportioned in accordance with the outcome of the case.

38 . A rticle 330 of the same Code points out that in cases where recourse is had to the assistance of a lawyer, the judge will order the losing party to reimburse the legal fees payable to counsel for the opposing party . Th e amount of the reimbursement shall be determined on the basis of the applicable regulations .

39 . Under section 164 in fine of Law n o. 1136 ( the Attorneyship Law) , the sums which a party to proceedings has been ordered to pay in respect of legal fees are payable to counsel for the opposing party . Those sums payable to the lawyer cannot be reduced, compensated or distrained on account of the client ’ s debts .

40 . By judgment of the General Assembly of Civil Chambers of 25 February 2004, the Court of Cassation ruled that both the expropriated party , having obtained compensation , and the authority , having obtained the transfer of ownership , should have their legal fees reimbursed . According to the Court of Cassation, the authority could be designated neither as the successful party nor as th e losing party .

THE LAW

41 . The applicant complained that he had not obtained a compensatory award consonant with the value of his property on account of the legal fees which he had been required to pay in favour of the expropriating authority. He relied on A rticle 6 of the Convention a nd A rticle 1 of Protocol No. 1.

42 . The Government contested that argument .

A. Characterisation of the complaint

43 . The Government observed that the applicant ’ s complaint concerned procedural costs. They consider ed that that question came under the right to a fair trial, and more particularly , the right of access to a tribunal.

44 . They also emphasised that it was precisely in the light of that aspect that the Constitutional Court had assessed the complaint, and they invited the Court to follow suit.

45 . The Government stated that in the pas t, the Court itself had considered issues relating to judicial fees from the angle of the right of access to justice. They cited, in that connection, the case of Stankiewicz v. Poland (n o. 46917/99, E CH R 2006 ‑ VI).

46 . Th e applic ant replied that his complaint concern ed not the right of access to a court but the right to the peaceful enjoyment of his property. He considered that his claim was direct ly linked to the Court ’ s case-law to the effect that compensation for expropriation had to be proportional to the real value of the property .

47 . Th e applic ant cite d the case of Perdigão v . Portugal ([GC], n o. 24768/06, 16 November 2010) as being similar to his own, reaching conclusions which had explicit ly contradicted the Government ’ s arguments concerning the legal characterisation of the complaint .

48 . The Court observe s that in his application to it, as before the Constitutional Court , the applic ant presented his complaint joint ly under the right to a fair trial and the right to the peaceful enjoyment of his property . However, it note s that in his final observations he argued solely from the standpoint of the right of ownership, and explicit ly stated that his complaint did not relate to the right of access to a tribunal.

49 . The Cour t reiterates that it is master of the characterisation to be given in law to the facts of the case, and does not consider itself bound by the characterisation given by the parties. Thus it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the applicant or the Government. Indeed, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see , among many other authorities , Radomilja and Others v . Croatia [GC] , n os. 37685/10 and 22768/12 , §§ 113-115, E CH R 2018).

50 . Furthermore , i t transpires from the case-law of the Court that a single fact can simultaneously fall foul of more than one provision ( see , fo r example , Airey v . Ireland , 9 October 1979, §§ 30-33, Series A n o. 32, o r , as regards A rticle 1 of Protocol N o. 1, Zehentner v . Austria , n o. 20082/02, 16 July 2009, and Société Anonyme Thaleia Karydi Axte v . Greece , n o. 44769/07 , 5 November 2009).

51 . A ccordingly, the issues relati ng to legal expenses can be assessed under both A rticle 6 of the Convention and A rticle 1 of Protocol No. 1.

52 . In the case of Stankiewicz cited by the Government , the Court considered the complaint under A rticle 6 and held that it was not necessary to examine it separately from the standpoint of the right to the peaceful enjoyment of one ’ s property . In Klauz v . Croatia (n o. 28963/10, 18 July 2013) and Cindrić and Bešlić v . Croatia (n o. 72152/13 , 6 September 2016), the complaint was examined successive ly under A rticle 1 of Protocol No. 1 and in the light of the right to a fair trial. In Perdigão , cited abov e, where the applic ant ’ s compensation for expropriation had been fully absorbed by the court fees payable , it considered the complaint exclusive ly under A rticle 1 of Protocol No. 1, which was the only provision relied upon by the applic ant.

53 . In the present case , the Court observe s that the applic ant ’ s primary com plaint is that he received an award in compensation out of kilter with the real value of the expropriated property , inasmuch as that value had been considerably diminished on account of the amount which he had had to pay to the authority in respect of its legal fees, and that this had reduced his personal fortune . The Court further notes that the applicant relied on the Perdigão judgment both during the domestic proceedings and before the Court .

54 . Under those circumstances , the Court considers that it would be more appropri ate to examine the applic ant ’ s grievance exclusively under A rticle 1 of Protocol No. 1.

55 . As regards the fact that the Constitutional Court decided to consider the applic ant ’ s complaint under the right of access to a court rather than under the right to the peaceful enjoyment of property , that is in no way binding on the Court .

56 . A rticle 1 of Protocol No. 1 provides :

“ Every natural or legal 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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

B. Admissibility

57 . Th e Government s ubmitted that the applic ant had not suffered an y infringement of his right to the peaceful enjoyment of his property . Th e applic ant had in fact obtained the sum of TRY 2, 515 , awarded to him by the courts in compensation for expropriation.

58 . Although the applicant had been ordered to pay the authority TRY 1, 500 in respect of its legal fees, the latter had, in turn, been ordered to pay him the same amount .

59 . That being the case, his complaint fell into the actio popularis category, given that the applic ant was com plain ing about a domestic practice merely because he considered that it infringed the Convention, even though he had not been direct ly affected.

60 . The applicant disagreed with the Government ’ s arguments .

61 . The Court considers that the preliminary objection raised by the Government is closely linked to the substance of the complaint and that it should be joined to the merits of the application .

62 . Noting, moreover, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.

C. Merits

1. The parties ’ submissions

63 . The applicant submitted that the order to pay the authority TRY 1,500 in respect of the latter ’ s legal fees breached his right to the peaceful enjoyment of his property in that that sum had diminished the compensation of TRY 2,515 which he had been awarded in respect of the expropriation of his property. He relied on the Perdigão judgment ( cited above ) in support of his complaint .

64 . The applicant considered that he could not be held responsible for the institution of judicial proceedings in the framework of the expropriation. In his view, responsibility should be taken by the expropriating authority which had undervalued his property. On this point, he explained that the value estimated by the authority was almost three times lower than that advanc ed by the courts .

65 . F in ally , he submitted that the fact that the authority had also been ordered to pay him TRY 1 , 500 in respect of legal fees was not such as to restore any kind of balance . In that connection, the applicant pointed out that under the Attorneyship Law , sums owed by a party in respect of legal fees we re payable ipso jure to counsel for the opposing party .

66 . The Government specified that in the sphere of expropriation , Turkish law prioritised friendly agreements between the parties rather than allowing a court to determine the amount of the award . They considered that this embodied a legitimate public interest .

67 . They submitt ed that an owner who was unable to reach a friendly agreement with the authority was incurring a risk of legal action , and could not be unaware that under foreseeable case-law he would be ordered, together with the expropriating authority , to pay the opposing party ’ s legal fees .

68 . The Government stated that by refusing to reach a friendly agreement, the expropriated party forced the authority to apply to a court to determine the amount of compensation to be awarded, which delayed the transfer of ownership and consequently interfered with public service .

69 . In s hort, it was the applic ant who, by failing to take part in the negotiation s on a friendly agreement, had originated the judicial proceedings .

70 . Moreover , the Government observed that although the applic ant had been ordered to pay the authority TRY 1,500 , the latter had also been ordered to pay the same sum to the applic ant. Therefore, the order issued to the applic ant to pay that sum had not had any impact on the total amount of his compensation for expropriation.

2. The Court ’ s assessment

71 . The Court r eiterates that A rticle 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest . However, the three rules are also interconnected . The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule ( see , among other aut ho r iti es, James and Others v . the Uni ted Kingdom , 21 February 1986, § 37, Series A n o. 98, and Depalle v . France [GC], n o. 34044/02, § 77, 29 March 2010).

72 . In the circumstances of the case, the question which arises is whether and to what extent the fact of ordering the applic ant to defray some of the opposing party ’ s legal fees amounts to an interference with his peaceful enjoyment of his possessions . Indeed , the sum of money which the applicant had to pay in respect of fees part ly absorbed his expropriation award , which qualifies as a “ possession ” within the meaning of A rticle 1 of Protocol No. 1.

73 . The Court considers it appropriate to examiner this issue under the general rul e set out in the first sentence of the first paragraph of A rticle 1 of Protocol No. 1 ( see Beyeler v . Italy [GC], n o. 33202/96, § 106, EC H R 2000-I).

74 . The Court r eiterates that in order to be compatible with A rticle 1 of Protocol No. 1, an interference with a person ’ s right to the peaceful enjoyment of his possessions must first and foremost satisfy the requirement of lawfulness and not be arbitrary ( see Iatridis v . Greece [GC], n o. 31107/96, § 58, E CH R 1999-II). A fair balance must also be struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights ( see Sporrong and Lönnroth v . Sweden , 23 September 1982, § 69, Series A n o. 52).

75 . The search for this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, whichever of the two paragraphs is applicable to the individual case : there must always be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the aim of the impugned interference. The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden ( see Depalle , cited above , § 83).

76 . Ascertaining whether such a balance existed requires an overall examination of the various interests at stak e. The Court considers that two important factors must be taken into account. First, as i t has already pointed out, the situation complained of arose because the applicants were deprived of their property. In such situations, a “fair balance” requires the payment of a sum reasonably proportional to the value of the property, otherwise the interference with the individual ’ s rights will be excessive . The Court would add that the Convention is intended to guarantee rights that are “practical and effective” rather than theoretical and illusory. Furthermore, i t must also examine the conduct of the parties to the dispute, including the means employed by the State and their implementation ( see Perdigão , cited above , § 68).

77 . In the instant case the applic ant was awarded compensation for expropriation to a total of TRY 2 , 515. However, on conclusion of the proceedings he was order ed to pay the expropriating authority a lump sum of TRY 1, 500 in respect of the legal fees incurred by the latter. Consequently , the amount which he ultimately received only came 40 % of the actual award .

78 . The Court note s that the obligation on the State to pay compensation for expropriation and the obligation o n litigants to pay court fees are two different things in legal terms , and that each of those obligations has a different legal purpose . It notes, however, that in the present case the applicant was a party to legal proceedings ag ainst the State concerning the determination of compensation for an expropriation carried out by the State in the exercise of its public-authority functions. The Court considers that this case is to be distinguished, when examining the question of proportionality, from those where court fees are charged in private-law disputes. In the particular circumstances of the case it might appear paradoxical that the State should take away with one hand – in court fees – more than it has awarded with the other. In such a situation, the difference in legal nature between the obligation o n the State to pay compensation for expropriation and the obligation o n a litigant to pay court fees does not constitute an obstacle to the overall examination of the proportionality of the impugned interference ( see Perdigão , cited above , § 72).

79 . Th e Government justified ordering the applicant to pay fees by arguing that he had originated the judicial phase of the expropriation process by failing to reach a friendly agreement with the authority on the amount of the compensat o ry award .

80 . The Court cannot accept that argument. Although ordering the losing party to pay costs and ex pens es, particularly the opposing party ’ s legal fees, does indeed pursue a legitimate aim and is not in itself contrary to the Convention ( see Cindrić and Bešlić , cited above , § 96 , and Klauz , cited above , § 84), i t is nonetheless difficult in the present cas e to designate the applicant as the “ losing party” . In that connection, the Court observe s that the amount estim ated by the authority ’ s experts was TRY 843, whereas the court ultimately set the compensation at TRY 2, 515, that is to say three times the initial amount . The applic ant was therefore justified in forcing the authority to apply to a court to determine the amount of the award. Furthermore , the Court observe s that there is no indication in the case file or in the arguments of the domestic courts that, in the framework of the domestic proceedings , the applic ant had submitted abusive requests or had behaved in such a way as to induce the opposing party to incur unnecessary ex penses.

81 . It might be objecte d, as the Government would seem to be suggesting, that if he had negotiated with the authority the applicant could possibly have succeeded in obtaining an awa r d equal to that ultimately d et ermined by the court, and that by refusing to do so he had been instrumental in bringing the case to court . However, that objection would be unjustified. Under section 8 ( 5 ) of the Law on expropriation, the amount of any agreed award must not exceed the sum estimated by the authority ’ s experts ( see paragraph 33 above ). No p ossible negotiations could therefore have enabled the applic ant to obtain an amount exceeding TRY 843 , which was already far below the actual value of his property.

82 . In other words, no responsibility whatever can be attributed to the applicant for the institution of the judicial proceedings . Accordingly , the argument to the effect that the applicant ’ s conduct justifie d the interference is ill- founded .

83 . Furthermore, as regards the argument that the applic ant ’ s compensation for expropriation had not in fact been decreased given that the authority had also been ordered to pay him the same sum , the Court observe s that the applic ant ’ s reply, both in Strasbourg and before the domestic Constitutional Court has been to the effect that the reciprocity in question had had no impact on the sum ultimately paid to him .

84 . Citing to that effect section 164 in fine of Law n o. 1136 (the Attorneyship Law) , the applic ant affirme d , without being contradicted by the Government on this point , that his lawyer had received the sum of TRY 1, 500 which the authority had been ordered to pay , and that that sum had therefore not offset the TRY 1,500 which he had had to pay the authority .

85 . The Court agrees with the applic ant. The financial obligations imposed on each of the parties in respect of costs and ex pens es do not cancel each other out because the applic ant was not the beneficiary of the sum pai d in this framework by the authority . In that regard , it cannot be overlooked that the provision cited by the applic ant prohibits any deduction from or compensation in respect of the sums payable to the lawyer on account of possible debts owed by his client ( see paragraph 34 above ).

86 . I t is true that the applic ant would in any case have had had to pay his lawyer, and that by ordering each of the two parties to reimburse the same lump sum the HRC implicit ly left it to the parties to pay their own legal fees . However , such a situation is incompatible with the right to the peaceful enjoyment of one ’ s possessions, which requires reimbursement of any legal fees incurred by the expropriated party . There are two reasons for this. The first, which has already been mentioned by the Court , is that the litigation originated in an expropriation, that is to say an act carried out by the State in the exercise of its public-authority functions and that the applic ant bears no responsibility for the institution of the proceedings . The second is that the fees in question amount to 40 % of the compensatory award for expropriation and that any failure to reimburse them would be tantamount to depriving the applic ant of much of his compensation .

87 . The Court does not rule out the possibility that a different outcome might emerge under other specific circumstances .

88 . In conclusion, having regard to the substantial decrease in the total compensation for expropriation which it had caused, and in view of the fact that nothing in the applic ant ’ s behaviour had justified it, the Court considers that the order issued to the applic ant to reimburse the expropriating authority ’ s legal fees imposed an excessive burden on him which upset the requisite fair balance between the general interest of society and the individual ’ s fundamental rights .

89 . There was therefore a violation of A rticle 1 of Protocol No. 1.

90 . The applic ant cla i me d TRY 2,508 in respect of pecuniary damage. That sum is the result of the inflation a djustmen t of the total of TRY 1,500 which he was ordered to pay .

91 . He further claimed TRY 5,000 in respect of the non-pecuniary damage which he considered he had sustained.

92 . As regards costs and ex pens es , he claimed 2 , 000 euros (EUR) in respect of legal fees, as well as TRY 440.70 f or fees occasioned by his appeal on points of law and his individual appeal to the Constitutional Court . In support of his claims he presented receipts for the procedural fees and a receipt concerning legal fees to a total of TRY 1,500 dated 9 January 2015.

93 . Th e Government conteste d those claims.

94 . The Court observed that the amount claimed in respect of pecuniary damage sustained by the applic ant totalled TRY 1,500 a t 22 September 2014. It note s that after adjustment for inflation, that amount now total s some EUR 400 , which sum it award s the applic ant in respect of pecuniary damage.

95 . As regards non-pecuniary damage, it considers that the finding of a violation is sufficient .

96 . With regard to costs and expenses, the Court reiterates that they may be recovered by applicants only in so far as they have been actually and necessarily incurred and are reasonable as to quantum . In the present case, having regard to the vouchers at its disposal , the Court deems reasonable the sum of EUR 500, which it awards to the applic ant.

97 . The Court considers it appropriate that the default interest rate 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,

(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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 400 ( four hundred euros) , plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 500 ( five hundred euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 23 October 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

R.S . H.B.

CONCURRING OPINION OF JUDGE LEMMENS

I voted with my colleagues in favour of finding a violation of A rticle 1 of Protocol No. 1. However, I would have preferred a slightly different reasoning for rejecting the Government ’ s argument that “ the applic ant ... originated the judicial phase of the expropriation process by failing to reach a friendly agreement with the authority on the amount of the compensat o ry award ” ( see paragraph 7 9 of the judgment ).

The majority set out an involved argument to demonstrate that the applic ant ’ s conduct in no way justified requiring him to defray the opposing party ’ s legal fe e s ( see paragraphs 74-76 of the judgment ).

I take the view that it would have been suffi cient to note that the applic ant was not order to pay those fees as a sanction f or any possible abusive or wrongful conduct. The only lawful basis f or ordering the applic ant to pay those fees was A rticle 330 of the C ode of Civil Procedure , which provides that the “ losing party ” must be order ed to reimburse the legal fees payable to counsel for the opposing party ( see paragraph 38 of the judgment ). This is a mechanical rule which has nothing to do with the conduct of the parties. Since the authority had been allowed to transfer the ownership of the property, the applicant in the present case could have been considered as the (partly) losing party (cf. paragraph 80 of the judgment, in which the majority consider that it is “ difficult in the present case to designate the applicant as the ‘ losing party ’ ” ).

Moreover, I consider that neither the fact that the applicant obtained, though judicial channels, a higher amount than that set by the authority before the opening of the negotiation phase (see paragraph 80 of the judgment), nor tale fact that under a friendly settlement he could not have obtained any amount higher than the latter one (see paragraph 81 of the judgment) is of any relevance in the present case.

The only decisive factor is that, under the regulations on costs and expenses , the applicant was in fact deprived of 60% of his compensation for expropriation. That is sufficient to conclude that an exorbitant burden was placed on him, upsetting the requisite balance between individual rights and the general interest (see paragraph 88 of the judgment).