ECHR Decree of 06 December 2016 in the case of Dokmeci v. Turkey (application No. 74155/14).
In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, a complaint was successfully considered on the non-payment of interest for the final payment of compensation for expropriation, despite the deprivation of the owner of the right to own land after the payment of the temporary amount. The case involved a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Dekmedzhi was the owner of agricultural land. In 2006, the planned construction of the dam and hydroelectric power station was declared a public interest project. In 2009, it was decided that the land affected by the project would be subject to an urgent expropriation procedure (Article 27 of the Expropriation Act No. 2942) allowing temporary compensation after field inspection in the absence of the expropriated owner. The relevant authority immediately paid the amount so established and acquired the right to own land. In 2010, this body appealed to the court for determining compensation, which would be a consequence of the "usual" procedure (Article 10 of the Expropriation Law), which provides for the participation of the owner in an on-site inspection.
In 2012, the court established the amount of final compensation, just under half of which was a temporary amount (45%), the rest of the amount was paid in the same year, and the ownership of the land was transferred to the relevant body. The applicant complained unsuccessfully to the Court of Cassation, and then to the Constitutional Court. In his opinion, the method used to calculate interest did not sufficiently compensate for the level of inflation.
ISSUES OF LAW
Concerning compliance with Article 1 of Protocol No. 1 to the Convention. Deprivation of property was legal. It remains to consider the proportionality of the burden. The additional amount due to the applicant after the second procedure did not include the payment of interest. Taking into account inflation in this period, from the date of application to the court until the decision was made, this part of the compensation lost approximately 14% of the land value.
Like the Constitutional Court, the Court found that the depreciation of the second part of compensation should be considered taking into account the total amount awarded. Urgent and usual procedures were essentially a single procedure, and they should have been assessed as a whole. Thus, the depreciation that should have been taken into account was 7.7%.
The Constitutional Court did not recognize this as a disproportionate and excessive burden, noting also that the applicant could use, spend or invest part of the compensation approximately 11 months before the start of the normal procedure.
The European Court disagreed with this conclusion. The present case should be distinguished from the rest of the cases, which he considered on the same subject against Turkey.
(i) In its Judgments on the cases of Gülec and Armut (on November 16, 2010, complaint No. 25969/09) or Budjak and others (on January 18, 2011, complaint No. 44019/09), the Court recognized that the depreciation of compensation For expropriation, which reached 10.74%, there was no disproportionate and excessive burden. At the same time, the applicants continued to use their property during this period, which partially, but sufficiently compensated for the devaluation of their compensation. However, in the present case the applicant was deprived of land from the end of the urgent procedure and therefore did not have the opportunity to use it during the period under review.
(ii) In the Arabadzhi Decisions (7 March 2002, complaint No. 65714/01) and Kurtulush (dated 28 September 2010, complaint No. 44019/09), this depreciation was significantly less than in the present case (5 and 3.67% respectively). In the Court's opinion, the Constitutional Court and the Government of the respondent State erroneously maintained the following:
(a) the applicant could use, spend or invest part of the compensation approximately 11 months before the commencement of the normal procedure. This argument was speculative and unreasonable, since the applicant lost possession of his land at the same time as the first payment was received;
(b) the first part of the compensation was deducted from the final amount only at face value, and not revised as of the date of referral to the court. The related benefits for the applicant were minimal, especially in view of his inability to use his property in that period and to receive the full amount corresponding to the value of his land at the time of loss of land ownership;
(c) the final compensation was increased due to an increase in the value of the expropriated property for that period. This argument was speculative, since there was no certainty in this respect. In any event, the respondent State could not take advantage of the situation created by the authorities themselves at the expense of some delay in introducing the procedure provided for in article 10 of the Expropriation Act.
Consequently, the discrepancy between the cost of compensation at the time of going to court and its value at actual payment should be considered as explained by the absence of interest. In the Court's view, the applicant suffered a disproportionate and excessive burden that violated the requirement of establishing a fair balance between the protection of property rights and the interests of society.
The case involved a violation of the requirements of Article 1 of Protocol No. 1 (unanimously adopted).
In the application of Article 41 of the Convention. The Court awarded 11,700 euros in respect of pecuniary damage to the applicant, the finding of a violation is sufficient in compensation for non-pecuniary damage.
See also the Yetis and Others v. Turkey judgment of 6 July 2010, application no. 40349/05.