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SECOND
SECTION
CASE OF ASFUROĞLU AND OTHERS v. TURKEY
(Applications
nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02,
36339/02 and 38616/02)
JUDGMENT
STRASBOURG
27 March
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 Asfuroğlu and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in eight applications (nos. 36166/02, 36249/02,
36263/02, 36272/02, 36277/02, 36319/02, 36339/02, and 38616/02)
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 ten Turkish nationals, Mr
Bedi Afsuroğlu, Mr Cem Pınar, Mr Cemil Özdemir, Mr
Suphi Delioğulları, Mr Mehmet Afsuroğlu, Ms Hülya
Matkap, Ms Seher Ekmekçi, Mr Sefik Bağdadıoğlu,
Mr Edip Hadımoğulları and Mr Kerim Berrak, on 4 and 11
July and 1 October 2002.
- The
first eight applicants were represented by Mr Z. Emir, a lawyer
practising in Hatay, and the last two applicants were represented by
Mr. M. Hadimoglu, 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
7 March 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 1937, 1954, 1944, 1944, 1920, 1964, 1959,
1928, 1958 and 1958, respectively, and live in Hatay.
- On
various dates, the applicants bought plots of land, near the coast,
in Hatay. Some of the applicants constructed houses, others built
restaurants and hotels on this land.
- In
1995 the Samandağ Municipality, acting on behalf of the
Treasury, requested the Samandağ Court of First Instance to
determine whether the applicants' land was located within
the coastline area. 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.
- Following
the conclusion of the experts' report, the Treasury filed actions
before the Samandağ Court of First Instance requesting the
annulment of the applicants' title-deeds to the plots because of
their coastal area location.
- On
various dates, the Samandağ Court of First Instance, after
having obtained additional expert reports, upheld the request of the
Treasury and decided to annul the title-deeds of the applicants. In
its decisions, the court held that, pursuant to domestic law, the
coast could not be subject to private ownership and that, therefore,
the applicants could not rely on the argument that they had acted
bona fides or on the fact that they had constructed buildings
on the land.
- The
applicants' appeals against the judgments of the first-instance court
were dismissed by the Court of Cassation. The applicants' requests
for rectification of these decisions were also rejected by the Court
of Cassation.
The details are indicated in the table below:
|
APPLICATION
NO.
|
NAME
OF THE APPLICANT
|
DATE OF
DECISION OF THE FIRST INSTANCE COURT
|
DATE OF
FINAL DECISION OF THE COURT OF CASSATION
|
DATE OF
NOTIFICATION OF THE FINAL DECISION OF THE COURT OF CASSATION
|
|
36166/02
|
Bedi
Asfuroğlu
|
24.12.1999
|
21.01.2002
|
20.02.2002
|
|
36249/02
|
Cem
Pınar
|
30.12.1999
|
14.01.2002
|
20.02.2002
|
|
36263/02
|
Cemil
Özdemir
|
30.12.1999
|
17.01.2002
|
20.02.2002
|
|
36272/02
|
Suphi
Delioğulları
|
24.12.1999
|
24.01.2002
|
06.03.2002
|
|
36277/02
|
Mehmet
Asfuroğlu
|
24.12.1999
|
14.01.2002
|
20.02.2002
|
|
36319/02
|
Hulya
Matkap
Seher
Ekmekci
|
30.12.1999
|
24.01.2002
|
06.03.2002
|
|
36339/02
|
Şefik
Bağdadıoğlu
|
24.12.1999
|
17.01.2002
|
20.02.2002
|
|
38616/02
|
Edip
Hadımoğulları
Kerim
Berrak
|
16.12.1999
|
28.02.2002
|
02.04.2002
|
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the Court's judgments in the
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 eight 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
property without payment of compensation, in 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.”
A. Admissibility
- The
Government submitted that the applicants had not exhausted domestic
remedies, as required by Article 35 § 1 of the Convention, as
they 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
Samandağ First Instance Court annulled the applicants' titles in
accordance with the Coastal Law, holding that the
plots of land in question had to remain under the authority of the
State as they were 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 of the Parties
- The
Government maintained that, according to the Constitution, the
coastlines belong to the State and can never become private property.
They maintained that, by cancelling the applicants' titles, the
Samandag Court of First Instance had actually corrected an unlawful
situation. Moreover, they alleged that, since it was not possible to
expropriate property 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 maintained their allegations.
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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
(Application no. 38616/02)
- The
applicants, Edip Hadımoğulları
and Kerim Berrak, further complained of violations of Articles
6 and 17 of the Convention. They alleged that the domestic court's
decision to annul their title-deed to the plot of land in question
was unfair and against the provisions of both domestic and
international law.
- The
Government contested these arguments.
- However,
an examination by the Court of the material submitted to it does not
disclose any appearance of a violation of these provisions. 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
applicants claimed different amounts in respect of their pecuniary
and non-pecuniary damage.
- The
Government contested the 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
assessments of the buildings had 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 takes note of the expert reports prepared at the request of the
applicants and filed with the Samandağ Civil Court of First
Instance dated 6 January and 30 May 2002, and 22 August and 27 August
2003, assessing the value of the various plots of land in dispute.
Accordingly, and in the light of equity, the Court awards the
applicants the amounts indicated in euros (EUR) in the table below
for pecuniary damage:
|
APPLICATION
NO
|
NAME OF THE
APPLICANT
|
AMOUNT
|
|
36166/02
|
Bedi
Asfuroğlu
|
40,000
|
|
36249/02
|
Cem Pınar
|
80,000
|
|
36263/02
|
Cemil
Özdemir
|
80,000
|
|
36272/02
|
Suphi
Delioğulları
|
40,000
|
|
36277/02
|
Mehmet
Asfuroğlu
|
25,000
|
|
36319/02
|
Hülya
Matkap
Seher
Ekmekçi
|
80,000 jointly
|
|
36339/02
|
Sefik
Bağdadıoğlu
|
70,000
|
|
38616/02
|
Edip
Hadımoğulları
Kerim Berrak
|
25,000 jointly
|
- As
regards the applicants' claim for non-pecuniary damage, 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 each claimed 2,000 US Dollars for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court.
- The
Government contested these claims, arguing that no credible evidence
has been submitted by the applicants to support the purported
lawyers' fees, and costs and expenses. They also added that the
amounts claimed were excessive.
- 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 were reasonable as to
quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1
October 2002). In the present case, although their requests are not
duly documented, the Court finds it appropriate to award the
applicants, for each case in question, the sum of 500 Euros (EUR),
that is to say a total of EUR 4,000. If there is more than one
applicant in the same case, this sum must be paid jointly to such
applicants.
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 application no. 38616/02
admissible as regards the complaint under Article 1 of
Protocol No. 1 and the remainder of the case inadmissible;
- Declares the other applications
admissible;
4 Holds that there has been a violation of Article
1 of Protocol No. 1 in each case;
- 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, the following
sums for pecuniary damage;
i. application
no. 36166/02, EUR 40,000 (forty thousand euros) to Bedi Asfuroğlu;
ii. application
no. 36249/02, EUR 80,000 (eighty thousand euros) to Cem Pınar;
iii. application
no. 36263/02, EUR 80,000 (eighty thousand euros) to Cemil Özdemir;
iv. application
no. 36272/02, EUR 40,000 (forty thousand euros) to Suphi
Delioğulları;
v. application
no. 36277/02, EUR 25,000 (twenty-five thousand euros) to Mehmet
Asfuroğlu;
vi. application
no. 36319/02, EUR 80,000 (eighty thousand euros), jointly, to Hülya
Matkap and Seher Ekmekçi;
vii. application
no. 36339/02, EUR 70,000 (seventy thousand euros) to Şefik
Bağdadioğlu;
viii. application
no. 38616/02, EUR 25,000 (twenty-five thousand euros), jointly, to
Edip Hadımoğulları and Kerim Berrak;
(b) within
the same three months period, the respondent State is to pay the
applicants, for each case in question, EUR 500 (five hundred euros),
totalling EUR 4,000 (four thousand euros) for costs and expenses; if
there is more than one applicant in a case, the sum of EUR 500 should
be paid jointly to such applicants;
(c) plus
any tax that may be chargeable to these amounts;
(d) that
these sums are to be converted into new Turkish liras at the rate
applicable on the date of settlement;
(e) that
from the expiry of the above-mentioned 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;
- Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 27 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
