The obligation of the owner of the property to be expropriated to pay part of the costs of legal representation of the opposing State has caused him excessive burdens and violated his right to the peaceful enjoyment of his property.
Musa Tarhan v. Turkey 23.10.2018 (no. 12055/17)
Land expropriation and determination of compensation price by Courts. Complain of the applicant that he had not received compensation reflecting the value of his property as he was asked to pay part of the costs of the legal representation of the administrative authorities. The European Court of Human Rights held that the burden of payment of the legal costs of the other State had caused an excessive burden on the applicant, since he could not in any way be held responsible for the commencement of the relevant court proceedings. An unequal balance between the general interest and the fundamental rights of the individual. Infringement of the right to property.
Article 1 of the First Additional Protocol
The applicant, Musa Tarhan, is a Turkish national who was born in 1955 and lives in Konya (Turkey).
The case concerned expropriation proceedings in which both parties to the dispute (the administrative authorities and the individual whose property had been expropriated) had been ordered to pay the opposing party a fixed amount to cover the costs of legal representation.
In December 2008 the water authority decided to expropriate a plot of land belonging to Mr Tarhan in Hadim (Turkey), the value of which it assessed at 843.58 Turkish liras (TRY). As the parties failed to reach agreement on the amount of compensation for the expropriation, the administrative authorities applied to the District Court.
In September 2014 the District Court ordered the transfer of the property, determining the amount of compensation at TRY 2,515.38. The court also ordered both parties to pay TRY 1,500 to the opposing party to cover the cost of legal representation. Mr Tarhan lodged an appeal on points of law against that decision, without success. In July 2016 he lodged an appeal with the Constitutional Court, which was likewise rejected.
Relying in particular on Article 1 of Protocol No. 1 (protection of property), Mr Tarhan complained that he had not received compensation reflecting the value of his property as he had been required to pay the cost of the administrative authorities’ legal representation.
THE DECISION OF THE COURT
Article 1 of Protocol No. 1:
The issue to be determined was whether and to what extent the order for the applicant to meet part of the cost of the opposing party’s legal representation amounted to interference with his right to the peaceful enjoyment of his possessions. The sum which the applicant had been required to pay towards the cost of representation had reduced the amount he received in compensation for the expropriation, which constituted a “possession” within the meaning of Article 1 of Protocol No. 1.
The applicant had been party to a legal dispute with the State concerning the determination of the amount of compensation for expropriation, resulting from a measure adopted by the State in the exercise of its public-authority functions. This case was to be distinguished, when examining the issue of proportionality, from cases in which court fees were charged in the context of a private-law dispute. It might appear paradoxical that the State should take away with one hand – in court fees – part of what it had awarded with the other. In such a situation, therefore, the legal difference between the obligation for the State to pay compensation for expropriation and the obligation for litigants to pay court fees did not constitute an obstacle to the overall examination of the proportionality of the impugned interference.
While the fact of ordering the unsuccessful party to pay costs and expenses, and in particular the costs of the opposing party’s legal representation, pursued a legitimate aim and was not of itself contrary to the Convention, it was difficult to see how the applicant in the present case could be characterised as an unsuccessful party. In that connection, the value of the expropriated property had been assessed by the administrative authorities’ experts at TRY 843, whereas the District Court had eventually determined the amount of compensation for expropriation at TRY 2,515, in other words, three times that amount. The applicant had therefore been justified in compelling the administrative authorities to apply to the courts in order to determine the amount of compensation. Furthermore, there was nothing in the case file or in the domestic courts’ reasoning to suggest that the applicant had made excessive demands in the domestic proceedings or that his conduct had caused the opposing party to incur unnecessary expenditure. Moreover, under the legislation on expropriation, the amount of any settlement reached could not exceed the estimate made by the administrative authorities’ experts, which in this case had been TRY 843, an amount well below the value of the applicant’s property. In other words, the applicant could not in any way be held responsible for the opening of the legal proceedings.
In addition, the financial obligations imposed on the two parties by way of costs and expenses did not cancel each other out, as the applicant had not been the recipient of the payment made by the administrative authorities in that context. The sum of TRY 1,500 which the administration had been ordered to pay had in fact gone to the applicant’s lawyer and thus did not offset the amount of TRY 1,500 which the applicant had had to pay to the administration.
It was true that the applicant would in any event have had to pay his lawyer and that the District Court, in ordering both parties to pay an identical fixed sum, had implicitly left them to pay the cost of their own representation. However, such a situation was incompatible with the right to the peaceful enjoyment of possessions, which in the instant case necessitated the reimbursement of the expropriated party’s legal costs. This was justified by two circumstances: (i) the dispute had arisen as a result of an expropriation, that is to say, an act falling within the State’s prerogatives in the exercise of its public-authority functions, and the applicant had not been responsible for the institution of proceedings; and (ii) the costs in question amounted to 40% of the compensation for expropriation, and failure to reimburse them would have been tantamount to depriving the applicant of a substantial part of his compensation. The Court did not rule out the possibility that different considerations might apply in some circumstances.
In sum, the order for the applicant to pay the cost of the expropriating authority’s legal representation had imposed an excessive burden on him which upset the fair balance to be struck between the general interest of the community and the fundamental rights of the individual.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; EUR 400 in respect of pecuniary damage(echrcaselaw.com editing).