THIRD SECTION

FINAL DECISION

Application no. 43817/98 by Zekeriyya KILIN ç 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 21 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, Zekeriyya Kılınç, Nuruttin Özban, Halime Özban, Nazmi Kılınç and Yakup Kılınç, are Turkish nationals. By a letter dated 27 August 2001 the applicants’ representatives informed the Court that the applicant Ms Halime Özban had died and that her heirs (Nahide Çapanoğlu, Taciddin Özban, Nuruttin Özban and the heirs of Necmettin Özban (Dursunhatun Özban, Mehmet Özban, Abdurrahman Özban, BülentÖzban, Orhan Özban, Güven Özban)) wish to pursue the application. They were 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

Zekeriyya KILINÇ

Nuruttin ÖZBAN

Nahide ÇAPANOĞLU

Taciddin ÖZBAN

Nuruttin ÖZBAN

Dursunhatun ÖZBAN

Mehmet ÖZBAN

Abdurrahman ÖZBAN Bülent ÖZBAN

Orhan ÖZBAN

Güven ÖZBAN

Nazmi KILINÇ

Yakup KILINÇ

20.07.1993

12.10.1994

   3.211.390.558

27.01.1998

COMPLAINTS

The applicants allege that the rate of interest applied in the calculation of the additional compensation for expropriation was too low. They 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 applicant’s 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 90,000 (ninety thousand) euros to Mr Zekeriyya Kılınç, Mr Nuruttin Özban, the heirs of Ms Halime Özban (Nahide Çapanoğlu, Taciddin Özban, Nuruttin Özban, the heirs of Necmettin Özban (Dursuhatun Özban, Mehmet Özban, Abdurrahman Özban, Bülent Özban, Orhan Özban, Güven Özban)), Mr Nazmi Kılınç and Mr Yakup Kılınç [1] with a view to securing a friendly settlement of the application registered under no. 43817/98. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

Furthermore, 45,000 (forty-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 ... 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 45,000 (forty-five thousand) euros within six months following the decision by the Court ... 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. ”

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 90,000 (ninety thousand) euros covering pecuniary and non-pecuniary damage and costs to Mr Zekeriyya Kılınç, Mr Nuruttin Özban, the heirs of Ms Halime Özban (Nahide Çapanoğlu, Taciddin Özban, Nuruttin Özban, the heirs of Necmettin Özban (Dursuhatun Özban, Mehmet Özban, Abdurrahman Özban, Bülent Özban, Orhan Özban, Güven Özban)), Mr Nazmi Kılınç and Mr Yakup Kılınç with a view to securing a friendly settlement of application no. 43817/98 pending before the Court.

I also note that 45,000 (forty-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 ... and the remaining 45,000 (forty-five thousand) 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.”

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 to add 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 join the 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 names of the heirs of the deceased applicant Halime Özban has been added and the name of one of the applicants, namely Zekeriyya Kılınç, has been corrected.