BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF İNCİ (NASIROĞLU) v. TURKEY
(Application
no. 69911/01)
JUDGMENT
STRASBOURG
14
June 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 İnci (Nasıroğlu) 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 E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 69911/01) 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, Ms Şükran İnci
(Nasıroğlu) (“the applicant”), on 8 May 2001.
- The
applicant was represented by Mr H. Kaplan, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant complained under Article 1 of Protocol No. 1 to the
Convention that she was deprived of her land without being paid
compensation for her loss.
- On
5 September 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 1955 and lives in Yalova.
- In
1975 the Ministry of Defence decided to expropriate a plot of land
(plot no. 976), measuring 808 m2
in the Karaköprü area in Şanlıurfa which belonged
to the applicant. On 29 September 1975 the amount of compensation for
the expropriation was blocked in the Diyarbakır Central Bank,
but the applicant never received this sum.
- On
10 May 1977 the applicant filed an action with the Şanlıurfa
Civil Court of General Jurisdiction and requested increased
compensation.
- On
1 April 1979, while the case for increased compensation was pending,
the Ministry of Defence informed the Şanlıurfa Land
Registration Office that they renounced their decision to expropriate
the land in question. The applicant did not pursue her case and in
1982 the first-instance court decided to discontinue the proceedings.
- In
1988 the Ministry of Defence brought an action before the Şanlıurfa
Civil Court of General Jurisdiction and requested the transfer of the
title deed to plot no. 976 to the Treasury. On 28 December 1988 the
court accepted the request. The applicant was not notified of the
proceedings or of the judgment delivered by the first-instance court.
On 15 February 1989 the court's decision
was announced in a newspaper. Subsequently, on 4 May 1989 the
plot was registered in the name of the Treasury.
- On
28 December 1998, after having learned about the transfer of the
title deed of plot no. 976 to the Ministry of Defence, the applicant
brought an action before the Şanlıurfa Civil Court of
General Jurisdiction and requested compensation for the unlawful
seizure of her property. She submitted, inter alia, that she
had not been notified of the case lodged by the Ministry of Defence
in 1988 or of the judgment delivered by the first-instance court. She
argued that the transfer of her title deed was therefore unlawful. In
reply, the Ministry of Defence argued that as they had been in actual
possession of the land since 1974, the applicant's action for
compensation had to be rejected as being time-barred.
- During
the proceedings, the first-instance court ordered an expert report in
order to determine the value of the land in question. On 15 September
1999 the first-instance court held an on-site inspection. It was
observed that the Ministry of Defence had surrounded the plot in
question with a fence. On 20 September 1999 a committee of experts
submitted a report to the first-instance court. In their report, the
experts determined that the value of plot no. 976 would be
34,934,046,448 Turkish liras (TRL) (approximately 73,000 euros
(EUR)).
- On
19 April 2000 the Şanlıurfa Civil Court of General
Jurisdiction dismissed the applicant's case. It found that the
Ministry of Defence had been in actual possession of plot no. 976
since 1974 and therefore held that the case was introduced out of the
statutory time limit as provided in Article 38 of the
Expropriation Act (Law no. 2942).
- On
26 September 2000 the Court of Cassation found the applicant's
grounds for appeal unfounded and upheld the judgment of the
first-instance court. The applicant's request for rectification was
further rejected on 15 November 2000.
- On
10 April 2003 the Constitutional Court annulled Article 38 of Law no.
2942.
II. THE RELEVANT DOMESTIC LAW
- 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 being
paid 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 that the application contravened the six months
time-limit pursuant to Article 35 of the Convention, as the
applicant's title deed was annulled on 28 December 1988.
- The
Court reiterates that it has already examined a similar preliminary
objection of the Government in the past and rejected it (see
Akıllı v. Turkey, no. 71868/01, §§ 17-19, 11
April 2006). It finds no particular circumstances to reach a
different conclusion in the instant case.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 1 of Protocol No. 1, which guarantees
the right to the protection of property, contains three distinct
rules: “the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest... The three rules
are not, however, 'distinct' in the sense of being unconnected. The
second and third rules are concerned with particular instances of
interference with the right to peaceful enjoyment of property and
should therefore be construed in the light of the general principle
enunciated in the first rule” (see Anheuser-Busch
Inc. v. Portugal [GC], no. 73049/01, § 62, 11 January 2007).
- An
interference with the peaceful enjoyment of possessions must strike a
fair balance between the demands of the general interests of the
community and the requirements 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 the Law No.
2942. Therefore the decision of the domestic courts had clearly the
effect of depriving the applicant of her property within the meaning
of the second sentence of Article 1 of Protocol No. 1 (see, mutatis
mutandis, Brumărescu v. Romania [GC], no. 28342/95,
§ 77, ECHR 1999 VII).
- The
Court notes that, according to Article 38 of Law no. 2942,
applications for compensation for the deprivation of property had to
be made within 20 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 his right to bring an action against de
facto occupation of his property lapses and requiring that the
property must be transferred to the authorities twenty years after
the occupation, would be contrary to the Constitution. Moreover,
referring to the case-law of the Court, it held that depriving
individuals arbitrarily of their right of 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 does not have a retroactive
effect and therefore does 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 the 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
requirements of the protection of the individual's fundamental rights
had been put in place (see Akıllı, cited above, §
33).
- The
Court consequently concludes 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
applicant claimed EUR 200,000 in respect of pecuniary damage.
- The
Government contested this claim.
31
Taking into account the circumstances of the case and deciding on an
equitable basis, the Court awards the applicant EUR 73,000 under this
head.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
- The
Government contested the applicant's claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,000 covering costs under all
heads.
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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- 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, the following
amounts 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:
(i) EUR
73,000 (seventy three thousand euros) in respect of pecuniary damage,
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(b) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Boštjan M. Zupančič
Registrar President
