THIRD SECTION

FINAL DECISION

Application no. 41139/98 by Nehdet DEMÄ°R 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 Nehdet Demir , Mr Malik Toprak , Mr Süleyman Toprak , Mr Asıf Toprak , Mr Selim Demir , Mr Garip Demir , Mr Cabir Demir , Ms Hasibe Dadük ( Toprak ), Ms Atra Demir and Ms Bedriye Toprak , 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.Nehdet DEMÄ°R

03.07.1996

23.12.1996

  92,430,000,000

31.12.1997

2.Malik TOPRAK

  Süleyman TOPRAK

  Asıf TOPRAK

05.06.1996

05.12.1996

113,131,400,000

31.12.1997

3. Süleyman TOPRAK

   Selim DEMÄ°R

27.06.1996

23.12.1996

  68,526,180,000

31.12.1997

4. Nehdet DEMÄ°R

   Garip DEMÄ°R

   Cabir DEMÄ°R

27.06.1996

23.12.1996

  68,938,922,000

31.12.1997

5. Süleyman TOPRAK

   Hasibe DADÃœK  

    (TOPRAK)

   Malik TOPRAK

   Asıf TOPRAK

   Atra DEMÄ°R

   Nehdet DEMÄ°R

   Garip DEMÄ°R

   Selim DEMÄ°R

   Bedriye TOPRAK

   Cabir DEMÄ°R

10.07.1996

23.12.1996

135,157,200,000

31.12.1997

6. Süleyman TOPRAK

19.06.1996

05.12.1996

  59,682,600,000

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 invoke 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 225,000 (two hundred and twenty-five thousand) euros to Mr Nehdet Demir with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

112,500 (one hundred and twelve 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 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 112,500 (one hundred and twelve thousand 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 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 (2)

I declare that the Government of Turkey offer to pay 150,000 (one hundred and fifty thousand) euros to Mr Malik Toprak , Mr Süleyman Toprak and Mr Asıf Toprak with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

75,000 (seventy-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 applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 75,000 (seventy-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 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 (3)

I declare that the Government of Turkey offer to pay 150,000 (one hundred and fifty thousand) euros to Mr Malik Toprak , Mr Süleyman Toprak and Mr Asıf Toprak with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

75,000 (seventy-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 applicants, free of any taxes and charges that may be applicable.

The Government further agree to pay the remaining 75,000 (seventy-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 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 (4)

I declare that the Government of Turkey offer to pay 180,000 (one hundred and eighty thousand) euros to Mr Süleyman Toprak and Mr Selim Demir with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

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 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 90,000 (ninety 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 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 (5)

I declare that the Government of Turkey offer to pay 180,000 (one hundred and eighty thousand) euros to Mr Nehdet Demir , Mr Garip Demir and Mr Cabir Demir with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

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 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 90,000 (ninety 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 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 175,000 (one hundred and seventy-five thousand) euros to Mr Süleyman Toprak , Ms Hasibe Dadük ( Toprak ), Mr Malik Toprak , Mr Asıf Toprak , Ms Atra Demir , Mr Nehdet Demir , Mr Garip Demir , Mr Selim Demir , Ms Bedriye Toprak and Mr Cabir Demir with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

87,500 (eighty-seven 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 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 87,500 (eighty-seven thousand 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 (7)

I declare that the Government of Turkey offer to pay 175,000 (one hundred and seventy-five thousand) euros to Mr Süleyman Toprak , Ms Hasibe Dadük ( Toprak ), Mr Malik Toprak , Mr Asıf Toprak , Ms Atra Demir , Mr Nehdet Demir , Mr Garip Demir , Mr Selim Demir , Ms Bedriye Toprak and Mr Cabir Demir with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

87,500 (eighty-seven 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 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 87,500 (eighty-seven thousand 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 (8)

I declare that the Government of Turkey offer to pay 160,000 (one hundred and sixty thousand) euros to Mr Süleyman Toprak with a view to securing a friendly settlement of the application registered under no. 41139/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

80,000 (eighty 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 80,000 (eighty 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 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 of 1,395,000 (one million three hundred and ninety-five thousand) euros covering pecuniary and non-pecuniary damage and costs to Mr Nehdet Demir , Mr Malik Toprak , Mr Süleyman Toprak , Mr Asıf Toprak , Mr Selim Demir , Mr Garip Demir , Mr Cabir Demir , Ms Hasibe Dadük ( Toprak ) [1] , Ms Atra Demir and Ms Bedriye Toprak with a view to securing a friendly settlement of application no. 41139/98 pending before the Court. This sum will be divided up as follows:

Nehdet Demir 225,000 EUR

Malik Toprak , Süleyman Toprak , Asıf Toprak 300,000 EUR

Süleyman Toprak , Selim Demir 180,000 EUR

Nehdet Demir , Garip Demir , Cabir Demir 180,000 EUR

Süleyman Toprak , Hasibe Dadük ( Toprak ), Malik Toprak ,

Asıf Toprak , Atra Demir , Nehdet Demir , Garip Demir ,

Selim Demir , Bedriye Toprak , Cabir Demir 350,000 EUR

Süleyman Toprak 160,000 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 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”

After informing the Government, the Court took into consideration the request made by the applicant’s representative’s on 9 September 2002 to add one applicant’s ( Hasibe Dadük Toprak ) maiden name.

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 the application out of its list of cases.

Vincent Berger Georg Ress Registrar President

[1] Taking into consideration the letter sent by the applicant’s representative on 9 September 2002, the name of one of the applicants, namely Hasibe Dadük ( Toprak ), has been corrected .