COŞAR v. TURKEY
Inadmissible
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
The applicant, Mr İsmail Coşar, is a Turkish national who was born in 1942 and lives in Istanbul. He is represented before the Court by Mr A. Yum and Mr Y. Güneş, lawyers practising in Istanbul. The Turkish Government (“the Government”) are represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 October 1995 the Governorship of Istanbul expropriated a 204 sq. m plot of land belonging to the applicant (block no. 19, plot no. 7793), located in the Kocasinan Soğanlıbahçe region of Bahçelievler, Istanbul, to be used as a public school yard. It assessed the value of the land at 224,400,000 Turkish liras (TRL), that is, TRL 1,100,000 per sq. m. On 14 February 1996 the administration sought to notify the applicant of the expropriation decision through a notary public. However, this notification did not reach the applicant as the service was made at the wrong address. On 20 December 1999 the applicant’s lawyer obtained the expropriation decision from the Istanbul Sixteenth Notary Public in person and the expropriation was thus finalised. On 19 January 2000, within the thirty-day prescription period stipulated in section 14 of the Expropriation Act (Law no. 2942), the applicant brought an action before the Bakırköy Civil Court for additional expropriation compensation. He requested TRL 3,855,600,000 in additional compensation, valuing the land at TRL 20,000,000 per sq. m, and reserved the right to increase this claim. He did not request payment of interest. On 14 February 2000 the ownership of the plot of land was transferred to the administration in the title deed register. On 16 February 2000 the administration paid the applicant the previously assessed amount of TRL 224,400,000 as compensation for expropriation. On 26 December 2001 the committee of experts appointed by the Bakırköy Civil Court assessed the value of the land at TRL 70,000,000 per sq. m. This evaluation was made on the basis of the value of the land on 20 December 1999, the date on which the applicant’s lawyer was notified of the expropriation decision. The experts, however, noted that the compensation to be paid to the applicant at the end of the proceedings should be limited to his original claim in accordance with the relevant procedural rules. On an unspecified date the applicant’s lawyer submitted a petition to the Bakırköy Civil Court, requesting that court, firstly, to apply interest on the amount of compensation to be awarded, and secondly to grant them additional time to bring an additional action (“ek dava”) to be able to claim an increased amount in compensation for the land. At the hearing held on 28 March 2002 the applicant’s lawyer repeated his claim regarding the interest but did not bring up the request for an additional action. At the end of the hearing, the Bakırköy Civil Court declared that the request regarding the interest would be entertained. It did not, however, take any decision on the request regarding an additional action, which had been made out of time. Given the considerable discrepancy between the experts’ evaluation and that of the administration, the court appointed another committee of experts to report on the value of the land. This new committee conducted an examination on 29 April 2002 and valued the land at TRL 149,500,000 per sq. m as on 20 December 1999. However, it was again noted that the additional compensation was to be limited to the applicant’s original claim. On 24 May 2002 the Bakırköy Civil Court accepted the applicant’s claim in full and awarded him TRL 3,855,600,000 in additional compensation, plus interest at the statutory rate running from 20 January 2000. That court stated that although the value of the land at the relevant time had been assessed to be higher in the expert reports, it was bound by the applicant’s claim of TRL 3,855,600,000, and therefore could not award him a higher amount. On an unspecified date, the applicant appealed against the judgment of the firstinstance court. He complained in particular that the value of his land had increased dramatically between 19 January 2000, the date when he had brought the case before the Bakırköy Civil Court, and 29 April 2002, the date when the second expert report had been obtained. In these circumstances, the insistence of the first-instance court on being bound by his initial claim had caused him significant financial loss. Having been obliged to bring his claim within the thirty-day prescription period, he could not possibly have foreseen such a radical increase in the value of his land. On 3 June 2003 the Court of Cassation upheld the judgment of the Bakırköy Civil Court. On 10 November 2003 the Court of Cassation rejected the applicant’s request for rectification of its previous decision. That decision was served on the applicant on 5 December 2003. On 31 December 2003 the administration paid the applicant TRL 12,708,078,000 in additional compensation, including interest. According to section 14 of the Expropriation Act (Law no. 2942 of 4 November 1983), the owner of an expropriated property may, within thirty days of notification of the expropriation decision, bring an action to challenge the amount of compensation assessed by the authorities. According to Article 74 of the Code of Civil Procedure, the civil courts are bound by the claims of the parties and may not award a higher amount than requested.