THIRD SECTION

DECISION

Application no. 32533/96 by Hasan KOCABEY 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 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 17 March 1996,

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 deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Kocabey, is a Turkish national and living in Ä°stanbul .

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

A. The circumstances of the case

In April 1977 the General Directorate of National Roads and Highways ( Devlet Karayolları Genel Müdürlüğü ), expropriated plots of land belonging to the applicant in Körfez, İzmit in order to build the Sakarya – Kınalı highway. A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place. However, the applicant was not lawfully notified of the expropriation at the time, thus he applied for increased compensation on 18 October 1993.

Following the applicant’s request for increased compensation, the Körfez First Instance Court awarded him additional compensation assessed at TRL 380,976,135 plus interest at the statutory rate of 5% per annum from 16 October 1983 to 19 December 1984 and 30% per annum from 19 December 1984 to the date of the Court of Cassation’s decision.

On 17 November 1994, upon the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court.

On 12 January 1998 the administration paid the applicant an additional compensation of TRL 1,892,018,000 interest included. The interest on the additional compensation was calculated at the statutory rate of 5% from 16 October 1983 to 19 December 1984 and 30% from 19 December 1984 to 31 December 1997. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%.

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

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 was increased to 50%.

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.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the Convention 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. He also complains about the delay in obtaining the additional compensation.

THE LAW

On 2 June 2002 the Court received the following declaration signed by the applicant :

“I have taken cognisance of the declaration of the Government of Turkey that they are prepared to make an ex gratia all-inclusive payment of 35,000 (thirty-five thousand) United States dollars (USD) with a view to concluding a friendly settlement of the case that originated in application no. 32533/96. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in United States dollars to a bank account named by the applicant and shall be payable within three months from the date of notification of the decision delivered by the Court.

I accept the proposal and waive any further 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 have reached.”

On 17 December 2002 the Court received the following declaration from the Government:

“I declare that the Government of Turkey offer to pay ex gratia to the applicant, Mr Hasan Kocabey , an all-inclusive amount of 35,000 (thirty-five thousand) United States dollars (USD) with a view to securing a friendly settlement of his application registered under no. 32533/96. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in United States dollars (USD) to a bank account named by the applicant and shall be payable within three months from the date of notification of the decision delivered by the Court. This payment will constitute the final settlement of the case. ...”

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 and Rule 62 § 3 of the Rules of Court).

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