THIRD SECTION

DECISION

Application no. 42433/98 by Ahmet BATMAZ and Others against Turkey

The European Court of Human Rights (Third Section) , sitting on 3 April 2003 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mrs M. Tsatsa-Nikolovska , 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 1 June 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ahmet Batmaz, Mustafa Yıldız and Mehmet Yıldız, are Turkish nationals, who were born in 1940, 1965 and 1926 respectively and live in Diyarbakır. They are represented before the Court Mr M.E. Aktar , a lawyer practising in Diyarbakır .

A. The circumstances of the case

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

On 3 January 1996 the applicants filed an action with the Diyarbakır Court of First Instance on the ground that the Diyarbakır Municipality, without expropriating, took actual possession of the plots of land belonging to them in Kaynartepe , Diyarbakır .

Following the applicants’ requests for additional compensation, the Diyarbakır Court of First Instance awarded each of the applicants additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date for the running of the statutory rate of interest was fixed as 3 January 1996 in respect of each applicant. On the Municipality’s appeal, the Court of Cassation upheld the decisions of the First Instance Court given in respect of each applicant.

The applicants started execution proceedings via the Istanbul Bailiffs’ Office and served a confiscation order on the Municipality’s property in order to enforce the payment of the additional compensation. Following the confiscation order, the Municipality filed an objection with the Diyarbakır Execution Court and requested the annulment of the confiscation proceedings. In its objection, the Municipality contended, inter alia , that the confiscation measures could not be conducted on its property, since the property was transferred to the Treasury for public interest by a decision of the Municipality Council. In its judgement of 2 October 1997 the Diyarbakır Execution Court ordered the annulment of the confiscation proceedings.

The Government submit that on 4 February 2000 the applicants signed a protocol with the Diyarbakır Municipality. According to the terms of the protocol the applicants would withdraw their claims pending before the Diyarbakır Bailiff’s Office. On 8 February 2000 the applicants were paid the following amounts:

Ahmet Batmaz : TRL 2,565,000,000

Mustafa Yıldız : TRL 4,747,000,000

Mehmet Yıldız : TRL 2,020,000,000

In a letter of 29 March 2002 the applicants’ representative informed the Office of the Provincial Governor of Diyarbakır that the applicants had waived all their claims against the Municipality.

B. Relevant domestic law and practice

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...”

At the material time the rate of interest for delay payable on debts owed to the State was 7% per month (84% per annum) (section 51 of Law no. 6183 on the collection of debts due to the State and Cabinet Ordinance no. 89/14915).

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. From 1 January 1998 the statutory rate of interest increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000 .

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% per annum between 1993 and 1999.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 that the authorities’ failure in payment of the additional compensation granted to them for the seizure of their land amounts to a violation of their rights to property.

2. The applicants allege under Article 6 § 1 of the Convention that the Diyarbakır Execution Court’s decision to stop the confiscation proceedings against the Municipality violated their rights to a fair trial. In this respect, the applicants allege that they don’t have any effective remedy to enforce the execution of the judgement given by the first instance court as regards the additional compensation.

3. The applicants finally complain under Article 13 of the Convention that they did not have any effective remedy before national authorities to obtain reparation for the loss resulting from the authorities’ failure in payment of the additional compensation.

THE LAW

The Court observes that in a letter of 3 June 2002 the applicants were invited to submit by 15 July 2002 any written observations which they might wish to make in reply to the Government’s observations of 18 April 2002 .

On 22 August 2002 the applicants were reminded that the period allowed for submission of their observations on the admissibility and merits of their application expired and that no extension of time had been requested. The applicants’ attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.

In a letter of 5 December 2002 the applicants were again reminded by registered mail that the Court had not received any observations and that it might strike the case out of its list of cases. The applicants’ representative received this letter on 17 December 2002 .

The Court also notes that the Government submit that the applicants were awarded an amount of compensation in respect of their claims from the Diyarbakır Municipality and that in their letter of 29 March 2002 they had informed the authorities that they had waived all their claims.

In these circumstances, the Court concludes that the applicants do not intend pursuing their application, within the meaning of Article 37 § 1 (a) of the Convention, and it finds no reasons of general interest concerning respect for human rights, within the meaning of the final sentence of Article 37 § 1, which would require the continued examination of the case with respect to the first, second and the third applicants.

Accordingly, the application 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