THIRD SECTION

FINAL DECISION

Application no. 41137/98 by Aydın ELİK and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 22 January 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 March 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 11 November 2003 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Aydın Elik , Mr Nedim Umay , Ms Nevim Dadük , Mr Davut Toprak , Mr Ali Toprak , Ms Hasibe Toprak , Ms Gülperi Toprak , Ms Gülseren Toprak , Ms Sevgi Demir and Ms Esmehen Demir , 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 decision of the first instance court. On 31 December 1997 the due amounts were paid to the applicants.

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.Aydın ELİK

25.09.1996

05.12.1996

386,186,400,000

31.12.1997

2.Nedim UMAY

27.03.1996

10.06.1996

150,502,800,000

31.12.1997

3.Nedim UMAY

17.07.1996

23.12.1996

77,878,700,000

31.12.1997

4.Nevim DADÃœK

19.06.1996

05.12.1996

26,790,480,000

31.12.1997

5. Davut TOPRAK

    Ali TOPRAK

   Hasibe TOPRAK

   Gülperi TOPRAK

   Gülseren TOPRAK

   Sevgi DEMÄ°R

   Esmehen DEMÄ°R

   Nevim DADÃœK

12.06.1996

05.12.1996

85,569,200,000

31.12.1997

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 rely on Article 1 of Protocol No. 1 and Article 6 of the Convention.

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 320,000 (three hundred and twenty thousand) euros to Mr Nedim Umay with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

160,000 (one hundred and sixty 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 Article 37 § 1 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 160,000 (one hundred and sixty thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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.

Ankara, 11 November 2003”

“Declaration (2)

I declare that the Government of Turkey offer to pay 320,000 (three hundred and twenty thousand) euros to Mr Nedim Umay with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

160,000 (one hundred and sixty 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 Article 37 § 1 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 160,000 (one hundred and sixty thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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.

Ankara, 11 November 2003”

“Declaration (3)

I declare that the Government of Turkey offer to pay 330,000 (three hundred and thirty thousand) euros to Mr Nedim Umay with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

165,000 (one hundred and 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 Article 37 § 1 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 165,000 (one hundred and sixty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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, 11 November 2003”

“Declaration (4)

I declare that the Government of Turkey offer to pay 72,000 (seventy-two thousand) euros to Ms Nevim Dadük with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

36,000 (thirty-six 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 Article 37 § 1 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 36,000 (thirty-six thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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, 11 November 2003”

“Declaration (5)

I declare that the Government of Turkey offer to pay 225,000 (two hundred and twenty-five thousand) euros to Mr Davut Toprak , Mr Ali Toprak , Ms Hasibe Toprak , Ms Gülperi Toprak , Ms Gülseren Toprak , Ms Sevgi Demir , Ms Esmehen Demir and Ms Nevim Dadük with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

112,500 (one hundred and twelve thousand and 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 Article 37 § 1 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 112,500 (one hundred and twelve thousand and five hundred) euros within six months following the decision by the Court pursuant to Article 37 § 1 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, 11 November 2003”

“Declaration (6)

I declare that the Government of Turkey offer to pay 310,000 (three hundred and ten thousand) euros to Mr Aydın Elik with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

155,000 (one hundred and fifty-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 Article 37 § 1 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 155,000 (one hundred and fifty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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.

Ankara, 11 November 2003”

“Declaration (7)

I declare that the Government of Turkey offer to pay 310,000 (three hundred and ten thousand) euros to Mr Aydın Elik with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

155,000 (one hundred and fifty-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 Article 37 § 1 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 155,000 (one hundred and fifty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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.

Ankara, 11 November 2003”

“Declaration (8)

I declare that the Government of Turkey offer to pay 310,000 (three hundred and ten thousand) euros to Mr Aydın Elik with a view to securing a friendly settlement of the application registered under no. 41137/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

155,000 (one hundred and fifty-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 Article 37 § 1 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 155,000 (one hundred and fifty-five thousand) euros within six months following the decision by the Court pursuant to Article 37 § 1 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, 11 November 2003”

The Court 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 of 2,197,000 (two million one hundred and ninety-seven thousand) euros covering pecuniary and non-pecuniary damage and costs to with a view to Mr Nedim Umay , Ms Nevim Dadük , Mr Davut Toprak , Mr Ali Toprak , Ms Hasibe Toprak , Ms Gülperi Toprak , Ms Gülseren Toprak , Ms Sevgi Demir , Ms Esmehen Demir and Mr Aydın Elik with a view to securing a friendly settlement of application no. 41137/98 pending before the Court. This sum will be divided up as follows:

Nedim Umay 970,000 EUR

Nevim Dadük 72,000 EUR

Davut Toprak , Ali Toprak , Hasibe Toprak ,

Gülperi Toprak , Gülseren Toprak , Sevgi Demir ,

Esmehen Demir , Nevim Dadük 225,000 EUR

Aydın Elik 930,000 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 § 1 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”

The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols and considers that there is no reason which would justify the continuation of the examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of the Court).

For these reasons, the Court unanimously

Decides to disjoin the application from other applications;

Decides to strike th

e application out of its list of cases.

Vincent Berger Georg Ress Registrar President