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SECOND
SECTION
CASE OF MOĞUL v. TURKEY
(Applications
nos. 40217/02 and 40218/02)
JUDGMENT
STRASBOURG
9
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Moğul v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mr S. Naismith, Deputy Section
Registrar.
Having
deliberated in private on 5 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 40217/02 and 40218/02)
against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Turkish nationals, Mr
Mustafa Moğul and Mr Ahmet Moğul (“the
applicants”), on 6 September 2002.
- The
applicants were represented by Mr M.K. Turan, a lawyer practising in
İzmir. The Turkish Government (“the Government”) did
not designate an Agent for the purpose of the proceedings before the
Court.
- On
26 January 2006 the Court decided to give notice of the applications
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1945 and 1949, respectively, and live in
Seferihisar, İzmir.
- The
applicants’ father, Ali Moğul, sold his two houses which
were situated in the Seferihisar district to his sons in 1972 and
1973, respectively, by a notary deed. He transferred the possession
of the land on which the houses were located to the applicants;
however, this land was not registered in the title deeds at that
time. The applicants requested that the land be divided into two
parts by the Seferihisar Municipality. Subsequently, the Municipality
acceded to their request on 25 April 1979.
- On
12 October 1981 the applicants were issued with title deeds for the
plots of land numbered 3 and 4 in Seferihisar, following a cadastral
survey conducted in the region.
- In
1999, a general survey of coastal districts carried out by the
National Property Supervisor defined the applicants’ plots of
land and houses as falling within the coastline area.
- On
18 May 2000 the Treasury brought an action against the applicants
before the Seferihisar Civil Court of First Instance for the
annulment of their title deeds on the ground that their land was
located within the coastline area. They claimed that, according to
the Coastal Law of 1990, the land in question could not be owned by
an individual, but could only be used in the public interest.
- On
29 June 2001 a group of experts, composed of a geomorphologist, a
cartography engineer and an agricultural engineer, appointed by the
court, inspected the applicants’ land and concluded that it was
located within the coastline area.
- On
19 July 2001 the first-instance court upheld the request of the
Treasury and annulled the applicants’ ownership in the title
deed registry.
- The
applicants’ requests for an appeal and rectification of this
judgment were rejected by the Court of Cassation on 20 February,
22 May and 5 June 2002.
- On
unspecified dates, the Treasury brought further actions against the
applicants, for injunctions to prevent any intervention (müdahelenin
men-i ve kal davası) by the applicants on the disputed land
and the destruction of the adjoining houses. On 15 June 2004 the
Seferihisar Civil Court of First Instance accepted this request in
relation to the first applicant. This decision has not yet been
finalised. The action against the second applicant is still pending
before the same court.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the Court’s judgments in
the similar cases of N.A. and Others v Turkey (no. 37451/97, §
30, 11 October 2005), and Doğrusöz and Aslan v.
Turkey (no. 1262/02, § 16, 30 May 2006).
THE LAW
- In
view of the similarity of the two applications, the Court finds it
appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that the authorities had deprived them of their
land without payment of compensation, in violation of Article 1 of
the Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted, firstly, that the applicants had not exhausted
domestic remedies, as required by Article 35 § 1 of the
Convention. In this connection, they maintained that the injunction
proceedings against the applicants had not yet been terminated. They
further alleged that the applicants had failed to make proper use of
the administrative and civil law remedies available to them in
domestic law.
- The
applicants contended that there were no effective remedies in
domestic law concerning their property rights.
- The
Court observes that the civil and administrative remedies indicated
by the Government could have provided the applicants with
compensation only if the records in the title deed registry, which
were in their name, had been annulled unlawfully. However, the
Seferihisar First Instance Court annulled the applicants’
titles in accordance with the Coastal Law, holding that the
land in question had to remain under the authority of the State as it
was located within the coastline area.
- The
Court therefore rejects the Government’s preliminary objection.
It further notes that the applications are not inadmissible on any
other grounds and must, therefore, be declared admissible.
B. Merits
1. Arguments before the Court
- The
Government maintained that, according to the Constitution, coastlines
belong to the State and can never become private property. They
maintained that, by cancelling the applicants’ titles, the
Seferihisar Court of First Instance had actually corrected an
unlawful situation. Moreover, they alleged that, since it was not
possible to expropriate properties which already belonged to the
State, the applicants cannot be awarded compensation for the
annulment of their title deeds. However, the applicants had the right
to lodge a “full remedy suit” or other claim for
pecuniary damage under the Code of Obligations. Yet they failed to
make use of this right.
- The
applicants submitted that, during the cadastral survey in 1981, the
plots of land had been registered in their names in the title deed
registry. This date was well before the adoption of the Constitution
in 1982, which provided that the coastal areas were at the exclusive
disposal of the State, and before 1990 when the new Law No. 3621 on
the coastline came into force. They maintained that they thus had a
vested interest in the properties which should have been respected by
the authorities. However, they were deprived of their right to
property without payment of any compensation.
2. The Court’s assessment
- The
Court has examined similar cases on previous occasions and has found
violations of Article 1 of Protocol No. 1 in respect of the annulment
of title deeds or the destruction of houses, purchased in good faith,
but restored to State ownership without compensation being paid (see
the aforementioned judgments in N.A. and others, §§
36 43, and Doğrusöz and Aslan, §§
26 32). The Court finds no reason to depart from that conclusion
in the present cases.
Accordingly,
it finds that there has been a violation of Article 1 of Protocol No.
1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants each claimed 100,000 new Turkish liras (YTL), the
equivalent of 53,954 euros (EUR), for the value of the plots of lands
and YTL 50,000 (EUR 6,958) for the buildings situated on them,
in respect of pecuniary damage. They further claimed YTL 17,500 (EUR
9,448) each in respect of non-pecuniary damage.
- The
Government contested these claims, arguing that they were
unsubstantiated and excessive. Moreover, they alleged that land of
this nature cannot have a market value and that the unilateral
assessment of the buildings has no binding effect.
- The Court reiterates that when the basis of the
violation found is the lack of compensation, rather than any inherent
illegality in the taking of the property, the compensation need not
necessarily reflect the property’s full value (I.R.S and
Others v. Turkey (just satisfaction), no. 26338/95,
§§ 23 24, 31 May 2005). It therefore deems it
appropriate to fix a lump sum that would correspond to an applicant’s
legitimate expectations to obtain compensation (Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 254 259, ECHR
2006 ..., Stornaiuolo v. Italy, no. 52980/99, §§
82 91, 8 August 2006, and Doğrusöz and Aslan,
cited above, § 36).
- The
Court notes that an expert report dated 20 May 2003 assessed the
value of the plots of land at TRL 10,300,000,000. The Court considers
that today, updated, this amount corresponds to approximately 16,500
new Turkish liras or EUR 9,000. Accordingly, the Court awards the
applicants EUR 9,000, each, in respect of pecuniary damages.
- As
regards the applicants’ claim for non-pecuniary damages, the
Court finds that, in the circumstances of the present cases, the
finding of a violation constitutes sufficient just satisfaction (cf.
the aforementioned Doğrusöz and Aslan judgment,
§ 38).
B. Costs and expenses
- The
applicants also claimed YTL 7,500 EUR (EUR 4,032) in respect of the
costs and expenses incurred before the domestic courts and YTL 25,000
(EUR 13,444) for those incurred before the Court. They referred to
the agreement signed between them and their representative in this
respect.
- The
Government contested the claims, arguing that they were excessive and
insufficiently documented.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicants EUR 2,500, jointly,
in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
1 of Protocol No.1;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine thousand
euros), each, in respect of pecuniary damage, and EUR 2,500 (two
thousand and five hundred euros), jointly, in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
new Turkish liras at the rate applicable of the date of settlement;
(b) that
from the expiry of the abovementioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 9 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P.
Costa
Deputy Registrar President
