THIRD SECTION

DECISION

Application no. 43917/98 by Ziya Ç ELİK against Turkey

The European Court of Human Rights (Third Section) , sitting on 19 September 2002 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 introduced 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ziya Çelik, is a Turkish national who was born in 1930 and lives in Ankara . He is represented in the proceedings before the Court by Mr İ. Ezerbolat , a lawyer practising in Ankara. The respondent Government were represented by Mr K. Gür , Deputy Director General for the Council of Europe and Human Rights, Ministry of Foreign Affairs.

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

On 1 September 1995 the General Directorate of National Roads and Highways ( Devlet Karayolları Genel Müdürlüğü , “the General Directorate”), expropriated plots of land belonging to the applicant in Mamak , Ankara. 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.

Following the applicant’s request for increased compensation, the Ankara First Instance Court awarded him additional compensation plus interest at the statutory rate of 30% per annum running from 29 August 1995, namely the rate applicable at the date of the court’s decision. On 23 June 1997, upon the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 3 February 1998 the administration paid the applicant the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the Court of Cassation in favour of the applicant and 31 December 1997, namely 30%. 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.

COMPLAINTS

1. 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 additional compensation.

2. The applicant complains under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention of the exceptional situation which was favourable to the State as a result of the difference between the rate of interest payable on debts owed to the State (around 84% per annum) and the rate of interest on overdue State debts (30% per annum) at the material time. The applicant also criticises the Court of Cassation for refusing to apply Article 105 of the Code of Obligations to the disputes concerning the authorities’ delay in payment of the compensation awarded by the domestic courts as regards the expropriation of his land.

THE LAW

On 4 February 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 Ziya Çelik , an all-inclusive amount of 10,000 (ten thousand) United States dollars (USD) with a view to securing a friendly settlement of his application registered under no. 43917/98. 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 / or his duly authorised representative. This sum 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.”

On 21 August 2002 the Court received the following declaration signed by the applicant’s representative:

“In my capacity as the representative of the applicant, Mr Ziya Çelik , I have taken cognizance of the declaration of the Government of the Republic of Turkey that they are prepared to make an ex gratia all-inclusive payment of 10,000 (ten thousand) United States dollars (USD) with a view to concluding a friendly settlement of the case that originated in application no. 43917/98. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and 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 ...

Having duly consulted the applicant, I accept that offer and he, in consequence, waives 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 applicant, 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