THIRD SECTION

DECISION

Application no. 69545/01 by Kasım ERBİL against Turkey

The European Court of Human Rights (Third Section), sitting on 2 October 2003 as a Chamber composed of:

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 6 September 2000,

Having regard to the formal declarations of acceptance of a friendly settlement of the case respectively submitted by the Government and the applicant on 11 and 14 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kasım Erbil, is a Turkish national, who was born in 1945 and lives in Izmir. He is represented before the Court by Mr Kaynar, Mr Koralay and Mrs Efe, lawyers practising in Izmir.

On 31 July 2002 the Court was informed of Mr Erbil’s death on 3 July 2001 and that Mrs Fatma Erbil, his wife, and his children, Mrs Emine Özata (Erbil), MM. Orhan and Mustafa Erbil, wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyer as their representative.

For practical reasons, Mr Kasım Erbil will continue to be called “the applicant” in this decision, although Mrs Erbil and her children are now to be regarded as such (see the Ahmet Sadık v. Greece judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3).

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

A. The circumstances of the case

In June 1995 the General Directorate of National Roads and Highways ( Devlet Karayolları Genel Müdürlüğü) expropriated a plot of land belonging to the applicant in Balçova, Izmir. A committee of experts assessed the value of the plot of land and compensation was paid to him when the expropriation took place.

Following the applicant’s request for increased compensation, the Izmir Court of General Jurisdiction (Asliye Hukuk Mahkemesi) awarded him additional compensation assessed at TRL 2,654,387,912 plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 12 July 1995, was fixed by the first instance court for the running of the statutory rate of interest. The applicant appealed. On 12 October 1998 the Court of Cassation upheld the decision of the first instance court. On 1 May 2000 the administration paid the applicant an additional compensation of TRL 8,014,200,000, interest included.

The interest on the compensation was calculated at the statutory rate applicable between the running date of the interest and 1 January 1998, namely 30%. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%. The statutory rate of interest was increased to 60% as of 1 January 2000.

Between 1993 and 1999 the rate of inflation averaged 81.7% per annum.

Details are indicated in the table below.

DATE FROM WHICH THE STATUTORY RATE OF INTEREST (30%) BEGAN TO RUN (the statutory rate of interest was increased to 50% on 1.1.1998 and 60% on 1.1.2000)

DATE OF FINAL DECISION AS REGARDS ADDITIONAL COMPENSATION

AMOUNT OF ADDITIONAL COMPENSATION

(interests and legal costs are not included)

(in Turkish Liras)

DATE AND AMOUNT OF PAYMENT AWARDED TO HIM

(in Turkish Liras)

12.07.1995

12.10.1998

2,654,387,912

1.05.2000

8,014,200,000

B. Relevant domestic law

1. The Constitution

The relevant part of Article 46 of the Constitution, relating to expropriations, provides:

“... Compensation for expropriation shall be paid immediately and in cash... If deferred payment is permitted by statute ... interest for delay at the maximum rate laid down for State debts shall be payable on the part that is not paid immediately...”

2. Law no. 3095 of 4 December 1984

Under Law no. 3095 the rate of interest on overdue State debts was set at 30% per annum. On 1 January 1998 the statutory rate of interest increased to 50%. As of 1 January 2000 the rate of interest was increased to 60%.

C. Economic factors

High and variable inflation has been a central feature of Turkish economy since the 1970s. Inflation in Turkey accelerated throughout the 1970s to a high of around 100% in 1980. The implementation of a stabilisation programme saw a sharp drop in inflation to some 30% around the early 1980s. This was soon reversed as inflation trended upwards from the mid-1980s, reaching a peak of 120% in 1994 with a currency crisis. Between the years 1989 to 1993 which was a pre-crisis period, the inflation rate stayed around 60%. After the crisis, the inflation rate moved to an upper plateau in the 80% range. Inflation started to drop to the 60% range starting in 1998 mainly due to the fiscal adjustment programme launched by the Government (Central Bank of Turkish Republic Inflation Report 2000).

The effects of inflation in Turkey are indicated in the lists of the consumer price index published by the State Institute of Statistics. According to the consumer prices, the average inflation in Turkey was 81.72% between 1993 and 1999.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that the rate of interest applied to the calculation of the additional compensation granted to him for the expropriation of his land was too low, despite the high inflation rate in Turkey. He also complains that the authorities had delayed in paying him the additional compensation.

THE LAW

On 12 August 2003 the Court received the following declaration from the Government:

“I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants, Mrs Fatma Erbil, Mrs Emine Özata, Mr Orhan Erbil and Mr Mustafa Erbil, an all-inclusive amount of sum 4,400 (four thousand four hundred) euros with a view to securing a friendly settlement of their application registered under no. 69545/01. This sum which is to cover any pecuniary and non-pecuniary damage as well as legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in Euros to a bank account named by the applicants and/or their duly authorised representative. This sum shall be payable within three months from the date of notification of the Court’s decision delivered pursuant to [Article 37] of the European Convention on Human Rights. This payment will constitute the final settlement of the case...”

On 14 August 2003 the Court received the following declaration signed by the applicants’ representative:

“In my capacity as the representative of the applicants, Mrs Fatma Erbil, Mrs Emine Özata, Mr Orhan Erbil and Mr Mustafa Erbil, I have taken cognisance of the declaration of the Government of the Republic of Turkey that they are prepared to make an ex gratia all-inclusive payment of 4,400 (four thousand four hundred) euros with a view to concluding a friendly settlement of the case that originated in application no. 69545/01. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal expenses connected with the case, will be paid in accordance with the terms stipulated in the said declaration within three months after the notification of the Court’s decision delivered pursuant to [Article 37] of the European Convention on Human Rights.

Having duly consulted the applicants, I accept that offer and they, in consequence, waive all other claims against Turkey in respect of the matters that were at the origin of the application...

This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicants, have reached...”

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 (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 strike the application out of its list of cases.

Vincent Berger Georg Ress Registrar President