FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applicati on no. 46562/99 by Fikret ODABAÅž I and Others against Turkey

The European Court of Human Rights (Fourth Section), sitting on 7 September 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mr s F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 September 1998 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Fikret Odabaşı, Mr Ömer Karaman and Mr Mustafa Tüten are Turkish nationals , who were born in 1944, 1939 and 1948 respectively, and live in Istanbul . They are represented before the Court by Mr Hüsamettin Koç ak, a lawyer practising in Istanbul .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 10 September 1992 the General Directorate of National Roads and Highways ( Karayolları Genel Müdürlüğü ) expropriated plots of land belonging to the applicants in order to build a motorway. A committee of experts assessed the value of the plot s of land and the relevant amount s were paid to the applicants.

Following the applicants ’ requests fo r additional compensation, on 4 June 1996 , the Pendik Civil Court of First Instance ( Asliye Hukuk Mahkemesi ) awarded  them additional compensation plus interest at the statutory rate . On 26 September 1996 the Court of Cassation upheld the judgments. On 17 March 1998 the due amounts were paid to the applicants.

Following the applicant ’ s request for additional compensation, on 16 October 1996, the Pendik Civil Court of First Instance ( Asliye Hukuk Mahkemesi ) awarded  him additional compensation plus interest at the statutory rate . On 1 October 1997 the Court of Cassation upheld the judgment. On 17 March 1998 the due amount was paid to the applicant.

Details are indicated in the table below:

NAMES OF THE APPLICANTS

DATE FROM WHICH THE STATUTORY RATE OF INTEREST

(30% and 50% ) BEGAN TO RUN

DATE OF FINAL DECISION BY          COURT OF CASSATION AS REGARDS ADDITIONAL COMPENSATION

AMOUNT OF ADDITIONAL COMPENSATION

(interests and legal costs are not included)

(in Turkish liras)

DATE AND AMOUNT OF PAYMENT (INCLUDING STATUTORY INTEREST AT THE RATE OF 3 0 % and 50 % PER ANNUM AND COSTS)

(the statutory rate of interest was 30%

from 19.12.1984 and 50% from 1.1.1998)

(in Turkish liras)

Fikret Odabaşı

23.01. 199 6

26.09.1 996

824,500,000

17.03.1998

1,434,886,000

Ömer Karaman

26.12.1995

01.10.1997

1,808,548,988

17.03.1998

3,178,234,000

Mustafa Tüten

23.12.1995

26.09.1996

1,209,144,395

17.03.1998

2,122,575,000

COMPLAINT

The applicants complain under Article 1 of Protocol No. 1 to the Convention that the authorities had delayed in paying them the additional compensation and that at a time when the annual rate of inflation in Turkey had been very high, they had been paid insufficient interest.

THE LAW

The applicants complain under Article 1 of Protocol No. 1 that they had been paid insufficient interest on additional compensation received following the expropriation of their land and that the authorities had delayed in paying them the relevant amounts.

T he Court considers that it cannot, on the basis of the  case file, determine the admissibility of the complaints brought before the Court by the first and third applicants and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.

Insofar as the second applicant ’ s complaint concerns his entitlement to the peaceful enjoyment of his possessions, the Court must examine whether a fair balance has been maintained between the demands of the general interest and the requirements of the protection of the individual ’ s fundamental rights; in that regard, the terms and conditions on which the compensation is payable under domestic legislation and the manner in which they were applied to the applicant ’ s case must be considered (see Lithgow and others v. the United Kingdom , judgment of 8 July 1996, Series A no. 102, p. 50, § 120).

The Court reiterates that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay (see, mutatis mutandis , Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 90, § 82). Abnormally lengthy delays in the payment of compensation for expropriation lead to increased financial loss for the person whose land has been expropriated, putting him or her in a position of uncertainty especially when the monetary depreciation which occurs in certain States is taken into account (see Akkuş , v. Turkey , judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1317, § 29).

The Court notes that, for the second applicant, the greater part of the additional compensation together with the interest at the rate of 30% per annum and from 1 January 1998 at the rate of 50% per annum was paid on 17 March 1998 , that is to say four months sixteen days after the Court of Cassation upheld the judgment.

The Court observes that according to the calculation method adopted in the judgment of Akkuş v. Turkey case (see Akkuş , cited above, § 35) on the date of the finalisation of the judgment or within a reasonable period thereafter, the applicant should have received 2,758,037,207 Turkish liras (TRL). On the date of the payment the amount of full compensation should have been TRL 3,003,119,185 . The applicant received TRL 3,178,234,000 , which is 105.83 % of the full compensation. Thus , the Court finds tha t the second applicant appears to have suffered no damage in respect of the amount of compensation awarded to him. The Court observes that the interest rates applied to the additional compensation were sufficient to compensate the second applicant for any damage resulting from the authorities ’ delay in payment of the compensation. It follows that this complaint is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court unanimously

Decides to adjourn the examination of the first and the third applicants ’ complaints concernin g the national authorities ’ delay in paying the additional compensation for expropriation and damage sustained by the applicants as a result of the low interest rate applied to it ;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President