THIRD SECTION

FINAL DECISION

Application no. 42145/98 by Fethi ERDAÅž and others against Turkey

The European Court of Human Rights (Third Section), sitting on 27 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 21 May 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 23 November 1999,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the applicants and the Government on 9 September 2002 and 8 March 2004 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Fethi Erdaş, Mr Mehmet Sadık Boltaç, Ms Melek Balkış, Mr Ahmet Gamğam, Ms Şadiye Dinler, Mr Hüseyin Coşğun, Mr Celal Emirler and Mr Yahya Emirler,  are Turkish nationals. They are represented before the Court by Mr A. Akıllıoğlu, Mr M. Nerse and Mr A. Aktay, lawyers practising in Ankara.

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

The General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Tarsus in order to build the Tarsus-İçel-Çukurova-İskenderun Motorway. A committee of experts assessed the value of the plots of land belonging to the applicants and these amounts were paid to them when the expropriation took place.

Following the applicants' requests for increased compensation, the national courts awarded them              additional compensation plus an interest at the statutory rate of 30 % per annum. The applicants appealed and the Court of Cassation upheld the decisions of the first instance courts. In January 1998 the due amounts were paid to the applicants respectively.

Details are indicated in the table below:

NAMES OF THE APPLICANTS

DATE OF TRANSFER OF TITLE DEED TO THE LAND

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 OF PAYMENT

1. Fethi ErdaÅŸ

14.06.1995

20.05.1996

  17,926,370,000

09.01.1998

2. Mehmet Sadık Boltaç

    Melek Balkış

21.06.1995

20.05.1996

  24,520,800,000

05.01.1998

3. Ahmet GamÄŸam

14.06.1995

23.05.1996

  54,071,815,000

08.01.1998

4. Åžadiye Dinler

21.06.1995

23.05.1996

    5,243,000,000

12.01.1998

5. Hüseyin Coşğun

14.06.1995

20.05.1996

  13,839,480,000

05.01.1998

6. Celal Emirler

    Yahya Emirler

05.07.1995

16.05.1996

    5,554,790,000

15.01.1998

7. Mehmet Sadık Boltaç

    Melek Balkış

14.06.1995

20.05.1996

  45,497,280,000

05.01.1998

COMPLAINTS

The applicants allege that the rate of interest applied in the calculation of the additional compensation for expropriation was too low. They further complain of the delays in obtaining their compensation. They invoke Article 6 of the Convention and Article 1 of Protocol No. 1.

THE LAW

Following informal contacts between the applicants' and the Government's representatives, the Section Registrar was asked to assist the parties in reaching a solution to the matter. As a result, the Registrar addressed draft declarations to the parties.

The Court received the following declarations from the Government:

“Declaration (1)

I declare that the Government of Turkey offer to pay 130,000 (one hundred and thirty thousand) euros to Mr Fethi ErdaÅŸ with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

65,000 (sixty-five thousand) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 65,000 (sixty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (2)

I declare that the Government of Turkey offer to pay 170,000 (one hundred and seventy thousand) euros to Mr Mehmet Sadık Boltaç and Ms Melek Balkış with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

85,000 (eighty-five thousand) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 85,000 (eighty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (3)

I declare that the Government of Turkey offer to pay 200,000 (two hundred thousand) euros to Mr Ahmet GamÄŸam with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

100,000 (one hundred thousand) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 100,000 (one hundred thousand) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (4)

I declare that the Government of Turkey offer to pay 200,000 (two hundred thousand) euros to Mr Ahmet GamÄŸam with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

100,000 (one hundred thousand) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 100,000 (one hundred thousand) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (5)

I declare that the Government of Turkey offer to pay 180,000 (one hundred and eighty thousand) euros to Ms Şadiye Dinler, Mr Hüseyin Coşğun, Mr Celal Emirler and Mr Yahya Emirler, with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs and will be divided up as follows:

Ms Şadiye Dinler   40,000 EUR

Mr Hüseyin Coşğun 100,000 EUR

Mr Celal Emirler, Mr Yahya Emirler   40,000 EUR

Furthermore, 90,000 (ninety thousand) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 90,000 (ninety thousand) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (6)

I declare that the Government of Turkey offer to pay 165,000 (one hundred and sixty-five thousand) euros to Mr Mehmet Sadık Boltaç and Ms Melek Balkış with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

82,500 (eighty-two thousand five hundred) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 82,500 (eighty-two thousand five hundred) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

“Declaration (7)

I declare that the Government of Turkey offer to pay 165,000 (one hundred and sixty-five thousand) euros to Mr Mehmet Sadık Boltaç and Ms Melek Balkış with a view to securing a friendly settlement of the application registered under no. 42145/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

82,500 (eighty-two thousand five hundred) euros of this sum, which corresponds to half of the whole sum agreed upon, will be payable within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 82,500 (eighty-two thousand five hundred) euros within six months following the decision by the Court pursuant to Article 37 § a) and c) of the European Convention on Human Rights. This sum shall also be paid in euros to a bank account named by the applicants, free of any taxes and charges that may be applicable. This payment will constitute the final resolution of the case.

Ankara, 8 March 2004”

The Court had received the following declaration signed by one of the representatives of the applicants:

“I note that the Government of Turkey are prepared to pay the sum of 1,210,000 (one million two hundred and ten thousand) euros covering pecuniary and non-pecuniary damage and costs to Mr Fethi Erdaş, Mr Mehmet Sadık Boltaç, Ms Melek Balkış, Mr Ahmet Gamğam, Ms Şadiye Dinler, Mr Hüseyin Coşğun [Taking into consideration the letter sent by the applicant's representative on 9 September 2002, the names of two applicants, namely Mr Ahmet Gamğam and Mr Hüseyin Coşğun, were corrected], Mr Celal Emirler and Mr Yahya Emirler with a view to securing a friendly settlement of application no. 42145/98 pending before the Court. This sum will be divided up as follows:

Fethi ErdaÅŸ 130,000 EUR

Mehmet Sadık Boltaç, Melek Balkış 170,000 EUR

Ahmet GamÄŸam 400,000 EUR

Şadiye Dinler   40,000 EUR

Hüseyin Coşğun 100,000 EUR

Celal Emirler, Yahya Emirler   40,000 EUR

Mehmet Sadık Boltaç, Melek Balkış 330,000 EUR

I also note that the payment of these sum will be made in the following conditions: Half of the amounts indicated within three months from the date of the decision by the Court pursuant to the Article 37 § a) and c) of the European Convention on Human Rights and the remaining half within six months from the date of this decision.

I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final settlement of the case.

This declaration is made in the context of a friendly settlement which the Government and the applicants have reached.

Mersin, 9 September 2002”

After informing the Government, the Court took into consideration the request made by the applicants' representatives on 9 September 2002 to correct the names of Mr Ahmet Gamğam and Mr Hüseyin Coşğun.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to disjoin the application from other applications;

Decides to strike the application out of its list of cases.

Mark Villiger Georg Ress              Deputy Registrar President