AVRUPA İNSAN HAKLARI MAHKEMESİNİN 9.7.1997 T. VE 60/1996/679/869 NUMARALI "AKKUŞ V. TÜRKİYE" KARARI KARŞISINDA KAMULAŞTIRMA BEDELİNDE TEMERRÜT FAİZİ İLE KARŞILANAMAYAN MUNZAM ZARARIN TAZMİNİ

Yıl 2002, , 1 - 13, 27.12.2002

O. Gökhan Antalya

https://doi.org/10.29228/mjes.252

Öz

AVRUPA İNSAN HAKLARI MAHKEMESİNİN 9.7.1997 T. VE 60/1996/679/869 NUMARALI "AKKUŞ V. TÜRKİYE" KARARI KARŞISINDA KAMULAŞTIRMA BEDELİNDE TEMERRÜT FAİZİ İLE KARŞILANAMAYAN MUNZAM ZARARIN TAZMİNİ

Öz

At the outcome of the actions aimmg at increasing the rate of expropriation, Courts judge that the expropriation rate must be increased and that it must be collected along with its legal interest beginning from the date of expropriation. Despite the verdict, the administration (defendant of the action) usually pays the amount concerned with an average delay of 5 years. Actions are brought to courts on grounds that the interest of delay does not cover the damages ofthe litigant which is caused by the delay.

Accoding to the "Akkuş - Türkiye" judgement of the ECHR dated 9.7.1997, No 60/1996/679/869, the damages not covered by legal interest of delay must be compensated under Art. 105 of Code of Obligations.

The dominant opinion in German, Swiss and Turkish doctrines is that losses originating from the devaluation of money may be considered as 'aşkın' damage.

In Turkish law, the Court of Cassation is of the opinion that such losses may be accepted as additional damage.

The second basic problem at this point concerns the proof of additional damage. According to judgements of the Court of Cassation which did not display consistency the loss may be demanded from the debtor only if the creditor can prove that he would invest the amount in away that would enable him to avoid the loss in case he received the amount in due time.

Our view is that, in Turkey where the inflation rate is not below 50-60%, the devaluation of money due to inflation exceeding the interest of the delay must be compensated as additional damage on the assumption that the creditor would invest the money avoiding the loss. 

Anahtar Kelimeler

-, AIHM, AB, TÜRKİYE

Kaynakça

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