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THIRD
SECTION
CASE OF AKYÜZ v. TURKEY
(Application
no. 35837/02)
JUDGMENT
STRASBOURG
29
November 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 Akyüz v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S.
Quesada, Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35837/02) 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 a Turkish national, Mrs Naciye Akyüz (“the
applicant”), on 22 May 2002.
- The
applicant, who had been granted legal aid, was represented by Mrs
Nuray Demir, a lawyer practising in Ankara. The Turkish Government
(“the Government”) did not designate an Agent for the
purposes of the proceedings before the Court.
- On
20 December 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1926 and lives in Ankara.
- On
23 January 1975 the applicant bought part of a plot of land (plot no.
98) in the Çankaya District of Ankara. In implementation of a
reconstruction plan (imar şuyulandırılması),
on 21 January 1981 a part of the applicant's plot (173.92 sq. m.) was
joined to another plot which had been used by the Ministry of Defence
since 1962. This plot was given the number 5965/1 and registered in
the applicant's name.
- Since
this land was occupied by the Ministry of Defence, the applicant
filed various petitions requesting the Ministry to expropriate it. On
6 September 1989 the Ministry informed the applicant that her land
would be expropriated in the coming years.
- On
10 November 1999, relying on Article 38 of Law no. 2942, the Ministry
of Defence lodged an application with the Ankara Civil Court of
General Jurisdiction for the annulment of the title deed of the
applicant to plot no. 5965/1 and its registration in the Treasury's
name. In response, the applicant lodged an application with the same
court for compensation for the de facto expropriation. On an
unspecified date, the case files were joined.
- Before
the court, the Ministry of Defence submitted that it had occupied the
disputed plot of land since 1962 and that, therefore, it should be
registered under its name pursuant to Article 38 of Law no. 2942. In
reply, the applicant stated that the date of de facto
expropriation in respect of her plot of land was 21 January 1981 and
that, therefore, Article 38 of Law no. 2942 was not applicable in her
case.
- On
19 December 2000 the Ankara Civil Court of General Jurisdiction
annulled the title deed of the applicant and ordered that the land be
registered in the name of the Treasury. The court dismissed the
applicant's request for compensation on the ground that it was
time-barred. It held that the Ministry of Defence had had de facto
possession of the property in question since 1962, and that the
applicant should have brought a case within twenty years from this
date in accordance with Article 38 of Law no. 2942.
- On
4 June 2001 the Court of Cassation upheld the judgment of the
first-instance court. The applicant's request for the reversal of its
decision was dismissed by the Court of Cassation on 12 October 2001.
The applicant was notified of this decision on 22 November 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
full description of the domestic law may be found in Börekçioğulları
(Çökmez) and Others v. Turkey (no. 58650/00,
§§ 23-29, 19 October 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that the deprivation of her land without
compensation amounted to a violation of Article 1 of 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted several preliminary objections. Firstly, they
alleged that the Court had no jurisdiction ratione temporis to
examine the case, since the reconstruction project had taken place in
1981; that is, before 8 January 1987, the date of deposit of Turkey's
declaration recognising the right of individual petition to the
European Commission of Human Rights. Secondly, they argued that the
applicant had not exhausted domestic remedies. In their view, she
should have initiated compensation proceedings immediately in 1981,
following implementation of the reconstruction plan. Finally, they
stated that the application was not introduced within the six-month
time-limit, as the Court of Cassation's decision upholding the
judgment of the Ankara Civil Court of General Jurisdiction was
delivered on 4 June 2001, whereas the application was introduced on
22 May 2002.
- The
Court notes that the Ministry of Defence lodged an application with
the Ankara Civil Court of General Jurisdiction and requested the
annulment of the title deed of the applicant to plot no. 5965/1 and
its registration in the Treasury's name on 10 November 1999. These
proceedings ended on 12 October 2001 with the decision of the Court
of Cassation rejecting the applicant's request for a reversal. That
decision was served on the applicant on 22 November 2001 and her
application to the Court was lodged exactly six months later.
Furthermore, as the land in dispute was registered in the applicant's
name until the end of the domestic proceedings, the Court concludes
that the Government's contention that she should have initiated
compensation proceedings in 1981 cannot be upheld.
- In
view of the above, the Court dismisses the Government's preliminary
objections.
- The
Court further considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- An
interference with the peaceful enjoyment of possessions must strike a
fair balance between the demands of the general interest of the
community and the requirement of the protection of the individual's
fundamental rights. The concern to achieve this balance is reflected
in the structure of Article 1 of Protocol No. 1 as a whole. The
requisite balance will not be found if the person concerned has had
to bear an individual and excessive burden (see, among other
authorities, Sporrong and Lönnroth v. Sweden,
judgment of 23 September 1982, Series A no. 52, pp. 26 and 28, §§
69 and 73). In other words, there must be a reasonable relationship
of proportionality between the means employed and the aim sought to
be realised (see, for instance, James and Others v. the United
Kingdom, judgment of 21 February 1986, Series A no. 98, p.
34, § 50).
- In
the present case, the applicant's title deed to the land in question
was transferred to the Treasury and her compensation claim was
rejected by the national courts pursuant to Article 38 of Law no.
2942. Therefore the decision of the domestic courts clearly had the
effect of depriving the applicant of her property within the meaning
of the second sentence of Article 1 of Protocol No. 1 (see, İnci
(Nasıroğlu) v. Turkey, no. 69911/01, § 23, 14
June 2007).
- The
Court notes that, according to Article 38 of Law no. 2942,
applications for compensation for a deprivation of property had to be
made within twenty years from the date the property was occupied. By
applying this provision retrospectively, the national courts deprived
the applicant of any possibility of obtaining compensation for the
annulment of her title deed. The Court observes at this point that,
since the application was lodged with the Court, Article 38 of Law
no. 2942 has been annulled by the Constitutional Court as being
unconstitutional. In its judgment dated 10 April 2003, the
Constitutional Court held that limiting an individual's right to
property, by maintaining that the right to bring an action against
the de facto occupation of the disputed property lapses, and
requiring that the property must be transferred to the authorities
twenty years after that occupation, was contrary to the Constitution.
Moreover, referring to the case-law of the Court, it held that
depriving individuals arbitrarily of their right to property and
their right to compensation was contrary to the principle of the rule
of law.
- The
Court takes into consideration the judgment of the Constitutional
Court and acknowledges its reasoning. Nevertheless, it notes that the
judgment of the Constitutional Court did not have a retroactive
effect and therefore did not provide the applicant with a procedure
capable of redressing the effects of a possible violation of the
Convention. Consequently, it considers that the matter has not been
resolved within the meaning of Article 37 § 1 (b) of the
Convention (see Börekçioğulları (Çökmez)
and Others, cited above, § 41).
- The Court considers that the application of Article 38
of Law no. 2942 to the applicant's case had the consequence of
depriving her of the possibility to obtain damages for the annulment
of her title. Although such an interference was founded on
legislation that was valid at the material time, it could only be
described as arbitrary, in so far as no compensation procedure
capable of maintaining the fair balance which had to be struck
between the demands of the general interest of the community and the
requirement of the protection of the individual's fundamental rights
had been put in place (see Akıllı v. Turkey, no.
71868/01, § 33, 11 April 2006).
- Accordingly,
the Court concludes that there has been a violation of Article 1
of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant submitted under Article 6 § 1 of the Convention that
her right to a fair trial had been breached, as the domestic courts
had not taken into account the evidence submitted by her or heard
evidence from witnesses.
-
The Court finds nothing whatsoever in the case file which might
disclose any appearance of a violation of this provision. It follows
that this part of the application is manifestly-ill founded and must
be rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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
applicant claimed 750,000 New Turkish liras (YTL)
- approximately
421,000 euros (EUR) - in respect of pecuniary damage, and YTL 100,000
- approximately EUR 56,000 - in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court notes that the parties have submitted six sample expert reports
concerning the value of the land in question. These reports, which
concerned neighbouring land, plot no. 5965/1, had been submitted to
the Ankara Civil Court of General Jurisdiction in the course of
domestic proceedings which are not relevant to the instant case. The
first report, dated 22 November 2004, stated that the value of 1 sq.
m. of plot no. 5965/1 was 600,000,000 Turkish Liras (TRL)
[approximately 181,951 euros / EUR], The second report, dated
25 November 2004, determined the value of 1 sq. m. of that land
at TRL 1,090,000,000 [approximately EUR 111,794]. The third
report, drafted on 3 June 2005, indicated that the value of 1 sq. m.
was YTL 1,505 [approximately EUR 144,573] in January 2005. According
to the fourth report, dated 20 June 2005, 1 sq. m.
equalled TRL 550,000,000 [approximately EUR 172,296] in
January 2000. As for the fifth report, dated 10 August 2005, it
stated that the value of 1 sq. m. was TRL 1,500,000,000
[approximately EUR 156,714] on 28 January 2004. Finally, the
last report, dated 15 November 2005, indicated that 1 sq. m. of
that land was worth TRL 900,000,000 [approximately EUR 94,028]
on 28 January 2004.
- The
applicant further submitted a letter from a real estate agent, Ankara
Bizim Emlak Müsavirliği, which estimated the value of 1
sq. m. of her land at a minimum of TRL 2,650,000,000 and a maximum of
TRL 3,100,000,000.
- The
Court reiterates that when the basis of the violation found is the
lack of any compensation, rather than the inherent illegality of the
deprivation of property, the compensation need not necessarily
reflect the full value of the land (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 the applicant's legitimate expectations
of obtaining compensation. Having regard to the documents submitted
by the parties, and deciding on an equitable basis, the Court awards
the applicant EUR 145,000 in respect of pecuniary damage.
- As
regards the applicant's claim for non-pecuniary compensation, the
Court finds that, in the circumstances of the present case, the
finding of a violation constitutes sufficient just satisfaction
(ibid. § 28).
B. Costs and expenses
- The
applicant also claimed YTL 1,000 - approximately EUR 560 - for the
costs and expenses incurred before the domestic courts. The applicant
stated that she had a contingency fee agreement with her lawyer.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant has not substantiated
that she has actually incurred the costs claimed. Accordingly, it
makes no award under this head.
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
- Declares the complaint concerning the
applicant's right to the peaceful enjoyment of her possessions
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that the finding of a violation in itself
constitutes sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 145,000
(one hundred and forty- five thousand euros) in respect of pecuniary
damage, to be converted into New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President