THIRD SECTION

FINAL DECISION [1]

Application no. 42822/98 by Ali OKSAL and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 23 October 2003 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 24 July 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 15 July 2003 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names are listed in the appendix, are Turkish nationals. By a letter dated 27 August 2001 the applicants' representatives informed the Court that the applicant Hasan Kürkcü had died on 3 June 1996 and that his heir Ayşe Kürkcü wished to pursue his application. The applicants are represented before the Court by Mr A. Akıllıoğlu 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 İçel 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. In the beginning of 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. Ali OKSAL

Mehmet OKSAL

Bülent OKSAL

Emine OKSAL

Tülin OKSAL (ATAR)

24.01.1992

25.05.1993

  131.563.000

06.02.1998

2. Yusuf KÜRKCÜ

30.05.1994

29.05.1995

  266.000.000

10.02.1998

3. Mustafa BÄ°RTEKÄ°N

Döne AKGÜL

Hasan BAÅž

Fadıma SALDÜZ

Mevlüt BİRTEKİN

13.09.1995

27.01.1997

11.098.864.000

06.02.1998

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

4. Mehmet KAPLAN

Abdil KAPLAN

Mahmut KAPLAN

Süleyman KAPLAN

Mustafa KAPLAN

15.10.1992

31.03.1994

  506.575.000

06.02.1998

5. Ayse KÜRKCÜ

06.06.1994

10.07.1995

  266.000.000

05.02.1998

COMPLAINTS

The applicants allege that the rate of interest applied in the calculation of the additional compensation for expropriation was too low. They also complain of the delays in obtaining their compensation. In this regard 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 declaration from the Government:

“I declare that the Government of Turkey offer to pay 81,750 (eighty-one thousand seven hundred and fifty) euros to Mr Ali Oksal, Mr Mehmet Oksal, Mr Bülent Oksal, Ms Emine Oksal, Ms Tülin Oksal (Atar), Mr Yusuf Kürkcü, Mr Mustafa Birtekin, Ms Döne Akgül, Mr Hasan Baş, Ms Fadıma Saldüz, Mr Mevlüt Birtekin, Mr Mehmet Kaplan, Mr Abdil Kaplan, Mr Mahmut Kaplan, Mr Süleyman Kaplan, Mr Mustafa Kaplan and the heir of Mr Hasan Kürkcü (Ms Ayşe Kürkcü) [2] with a view to securing a friendly settlement of the application registered under no. 42822/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs and will be divided up as follows:

Mr Ali Oksal, Mr Mehmet Oksal, Mr Bülent Oksal,

Ms Emine Oksal, Ms Tülin Oksal (Atar) 13,500 EUR

Mr Yusuf Kürkcü   4,750 EUR

Mr Mustafa Birtekin, Ms Döne Akgül, Mr Hasan Baş,

Ms Fadıma Saldüz, Mr Mevlüt Birtekin 36,000 EUR

Mr Mehmet Kaplan, Mr Abdil Kaplan, Mr Mahmut Kaplan,

Mr Süleyman Kaplan, Mr Mustafa Kaplan 23,500 EUR

The heir of Mr Hasan Kürkcü (Ms Ayşe Kürkcü)   4,000 EUR

Furthermore, 40,875 (forty thousand eight hundred and seventy-five) 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 40,875 (forty thousand eight hundred and seventy-five) 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, 20 June 2003”

The Court received the following declaration from one of the representatives of the applicants:

“I note that the Government of Turkey are prepared to pay the sum of 81,750 (eighty-one thousand seven hundred and fifty) euros covering pecuniary and non-pecuniary damage and costs to Mr Ali Oksal, Mr Mehmet Oksal, Mr Bülent Oksal, Ms Emine Oksal, Ms Tülin Oksal (Atar), Mr Yusuf Kürkcü, Mr Mustafa Birtekin, Ms Döne Akgül, Mr Hasan Baş, Ms Fadıma Saldüz, Mr Mevlüt Birtekin, Mr Mehmet Kaplan, Mr Abdil Kaplan, Mr Mahmut Kaplan, Mr Süleyman Kaplan, Mr Mustafa Kaplan and the heir of Mr Hasan Kürkçü (Ms Ayşe Kürkcü) with a view to securing a friendly settlement of application no. 42822/98 pending before the Court. This sum will be divided up as follows:

Mr Ali Oksal, Mr Mehmet Oksal, Mr Bülent Oksal,

Ms Emine Oksal, Ms Tülin Oksal (Atar) 13,500 EUR

Mr Yusuf Kürkcü   4,750 EUR

Mr Mustafa Birtekin, Ms Döne Akgül, Mr Hasan Baş,

Ms Fadıma Saldüz, Mr Mevlüt Birtekin 36,000 EUR

Mr Mehmet Kaplan, Mr Abdil Kaplan, Mr Mahmut Kaplan,

Mr Süleyman Kaplan, Mr Mustafa Kaplan 23,500 EUR

Mr Hasan Kürkcü (Ms Ayşe Kürkcü)   4,000 EUR

I also note that 40,875 (forty thousand eight hundred and seventy-five) 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 and the remaining 40,875 (forty thousand eight hundred and seventy-five) euros will be payable 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 applicant's representative's request of 9 September 2002 to make corrections to some of the applicants' names as well as adding the names of the heirs of the deceased applicants in the above declarations.

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

List of Applicants

[1] The decision has been rectified under Rule 81 of the Rules of Court on 11 March 2004.

[2] Taking into consideration the letter sent by the applicant’s representative on 9 September 2002, the name of two of the applicants, namely Tülin Oksal (Atar) and Yusuf Kürkcü, have been corrected . Furthermore, the name of the heir of the deceased applicant, Hasan Kürkcü, has been added.