THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 68123/01 by Sefer KILDACI and Others against Turkey

The European Court of Human Rights (Third Section) , sitting on 6 February 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , 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 23 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants, Sefer Kıldacı, Ali Kıldacı and Mehmet Yankaç, are Turkish nationals, born in 1943, 1945 and 1939 respectively, and they live in Istanbul. They are represented before the Court by Mr Koçak, a lawyer practising in İstanbul.

A. The circumstances of the case

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

In 1992, the General Directorate of National Roads and Highways ( Devlet Karayolları Genel Müdürlüğü ), a state body responsible, inter alia , for motorway construction, expropriated three plots of land belonging to the applicants in İstanbul . A committee of experts assessed the value of these plots of land and this amount was paid to them when the expropriation took place.

On 25 November 1997, following the applicants’ request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded them an additional compensation of 8,436,250,000 Turkish liras (TRL) plus an interest at the statutory rate of 30 % per annum.

On 10 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount, which was 14,257,956,000 Turkish liras (TRL) including the interest, was paid to the applicants on 26 May 1998.

B. Relevant domestic law

Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000.

A description of further relevant domestic law may be found in the Aka v. Turkey , judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey , judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.

COMPLAINTS

The applicants complained under Article 1 of Protocol No. 1 to the Convention that at a time when the annual rate of inflation in Turkey had been very high, they had been paid insufficient interest on additional compensation received following the expropriation of their land and that the authorities had delayed in paying them the relevant amounts.

THE LAW

The applicants complained that the insufficient interest on additional compensation that they have received following the expropriation of their land was in breach of their rights guaranteed under Article 1 of Protocol No. 1 to the Convention. Furthermore, they maintained under the same Article that the authorities delayed in paying them the relevant amounts.

Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. Exhaustion of domestic remedies

The Government pleaded failure to exhaust domestic remedies in that the applicants had not brought an action for reparation under Article 105 of the Code of Obligations.

The applicants submitted that Article 105 of the Code of Obligations does not provide a remedy for those who claim an additional compensation for their damages caused by late payment.

The Court reiterates that the only remedy which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Akdıvar and Others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, § 66, and Dalia v. France , judgment of 19 February 1998, Reports 1998-I, § 38).

The Court recalls its earlier finding in the Aka v. Turkey case (see Aka , cited above, §§ 35-36), where it held that the creditors of the State cannot rely on the means of redress provided under Article 105 of the Code of Obligations to afford them a prospect of obtaining damages for loss resulting from monetary depreciation exceeding interest for delay awarded under Law no. 3095.

In the light of the above, the Court holds that, in the present case, Article 105 of the Code of Obligations does not provide an adequate and effective remedy which the applicants had to exhaust. Consequently, the Court dismisses the Government’s preliminary objection of non-exhaustion.

2. Merits

The applicants complained that the authorities delayed in paying them the additional compensation. They further complained that the interest rate of 30% per annum , which was applied to calculate the additional compensation for the period between the date on which the title of the land was transferred to the State and the date of the actual payment to the applicants, was much less than the average inflation rate of the period. In this regard, they pointed out that the interest rate per annum , for the period between the date on which the Court of Cassation delivered its judgment and the actual date of payment, was 50%. Therefore they concluded that in any case they have suffered a loss.

The Government submitted that the additional compensation was paid to the applicants on 26 May 1998, which is only two months and sixteen days after the date of final decision delivered by the Court of Cassation . With reference to the Court’s Akkuş v. Turkey judgment of 9 July 1997 (see Akkuş , cited above, § 35) the Government contended that seventy-six days is a reasonable period to make the payment which fully compensates the applicants’ losses.

As the situation of which the applicants complain concerns their entitlement to the peaceful enjoyment of their possessions, the Court must examine whether a fair balance has been struck between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights; in that regard the terms and conditions on which the compensation is payable under domestic legislation and the manner in which they were applied to the applicants’ case must be considered (see Lithgow and others v. the United Kingdom , judgment of 8 July 1996, Series A no. 102, p. 50, § 120)

The Court reiterates that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay (see, mutatis mutandis , Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 90, § 82). Abnormally lengthy delays in the payment of compensation for expropriation lead to increased financial loss for the person whose land has been expropriated, putting him in a position of uncertainty especially when the monetary depreciation which occurs in certain States is taken into account (see Akkuş , cited above, § 29).

The Court notes that the additional compensation together with the interest at the rate of 30% per annum and from 1 January 1998 at the rate of 50% per annum was paid to the applicants on 26 May 1998, that is to say less than three months after the Court of Cassation’s judgment. Considering its finding in the Akkuş case where it held that a reasonable period to pay the due compensation was for instance three months running from the date of final decision of the Court of Cassation (see Akkuş , cited above, § 35) the Court concludes that, in the present case, the applicants received the additional compensation within a reasonable time.

Moreover, the Court observes that during the period in question there was no noticeable change in the monetary depreciation in the country to undermine the value of compensation paid to the applicants.

Consequently, the applicants cannot be regarded as have endured a considerable loss deriving from the deferral of payment.

The Court concludes, therefore, that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress              Registrar              President