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SECOND
SECTION
CASE OF ASLAN AND ÖZSOY v. TURKEY
(Applications
nos. 35973/02 and 5317/02)
JUDGMENT
STRASBOURG
30
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 Aslan and Özsoy v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, 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 Regitrar,
Having
deliberated in private on 9 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 35973/02 and 5317/02)
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 two Turkish nationals, Mr
Refik Aslan and Mr Ali Fuat Özsoy (“the applicants”),
on 6 August 2002 and 19 October 2001 respectively.
- The
applicants were represented by Mr L. Fırıncıoğulları,
a lawyer practising in Hatay. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
27 February 2006 and 4 March 2006 respectively, 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 1965 and 1936 respectively and live in Hatay.
- On
various dates, the applicants bought plots of land (nos. 1879 and
1878 respectively) near the coast in Hatay. The first applicant
opened a wedding hall on the premises. The second applicant ran a
cafeteria and a boarding house.
- In
1995 the Samandağ Municipality, acting on behalf of the
Treasury, requested the Samandağ Court of First Instance to
determine whether the applicants’ plots of land were located
within the coastline. 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 they were located within the coastline.
- Following
the conclusions of the experts’ report, the Treasury filed two
separate actions before the Samandağ Court of First Instance,
requesting the annulment of the applicants’ title deeds to the
lands on the ground that they were located within the coastline.
- On
30 December 1999 and 24 December 1999 respectively, the Samandağ
Court of First Instance, after having obtained additional experts’
reports, upheld the request of the Treasury and decided to annul the
title deeds of the applicants to the plots of land. In its decisions,
the court held that, pursuant to domestic law, coasts could not be
subject to private ownership and that, therefore, the applicants
could not rely on the argument that they had acted bona fides
and on the fact that they had constructed buildings on the site. The
Court of Cassation dismissed the applicants’ appeals on 10 July
2001 and 3 October 2000 respectively.
- On
various dates the applicants requested the Court of Cassation to
rectify its decision submitting, inter alia, that the right to
property was protected under international conventions, the
constitution and the domestic law, and that the domestic courts had
deprived them of their property rights without proper examination.
The Court of Cassation dismissed the applicants’ requests on 17
January 2002 and 19 April 2001 respectively. These decisions were
served on the applicants on 18 February 2002 and 24 May 2001
respectively.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the Doğrusöz and Aslan v. Turkey
judgment (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 property without payment of compensation.
- The
Court considers that this complaint falls within the scope 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 maintained, firstly, 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. They suggested that the applicants had also failed to raise the
substance of their complaints before the domestic courts. Secondly,
the Government asked the Court to dismiss the first application for
failure to comply with the six-month time limit under Article 35
§ 1 of the Convention. They alleged that the first applicant
should have applied to the Court within six months following the
introduction of the case concerning the annulment of the land’s
registration.
- The
applicants maintained their allegations.
- As
regards the first limb of the Government’s objections, the
Court notes firstly that the applicants did raise the substance of
their complaints before the domestic court (see paragraph 9).
Moreover, it reiterates that the Court has already examined and
rejected the Government’s similar objections in previous cases
(see Doğrusöz and Aslan, cited above, § 22).
The Court finds no particular circumstances in the instant cases
which would require it to depart from its findings in the
above-mentioned application. It therefore rejects the Government’s
objections under this head.
- As
to whether the first applicant has complied with the six-month rule,
the Court notes that, by lodging his case with the Court on 6 August
2002, the applicant complied with the requirement set out in
Article 35 § 1 of the Convention, as the final decision of
the domestic courts was taken on 17 January 2002 and this
decision was notified to the applicant on 18 February 2002.
- The
Court therefore also rejects the Government’s preliminary
objection regarding the six-month rule. It further notes that the
applications are not inadmissible on any other grounds and must,
therefore, be declared admissible.
B. Merits
- The
Government maintained, in particular, that, according to the
Constitution, coastlines belong to the State and can never become
private property. They argued that the applicants should have been
aware that the utilisation of a property which was in a shore area
owned by the State could not become private property. Therefore, the
entry in the applicants’ name in the land registry was contrary
to the Constitution and the laws applying at the material time, and
the illegal transaction was corrected by the Samandağ Civil
Court of First Instance.
- The
applicants maintained their allegations.
- 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, acquired in good faith, but restored to State
ownership without compensation being paid (see Doğrusöz
and Aslan, cited above, §§ 26 32; and N.A.
and Others v. Turkey, no. 37451/97, §§ 36-43,
ECHR 2005 ...). 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 claimed, in total, 124,404 euros (EUR) and EUR 167,765
respectively for the value of their property and loss of profit
incurred from the annulment of their title deeds. Their claims as
regards the value of their property were based on expert reports
dated 29 August 2006 and 8 September 2006 respectively, prepared upon
the applicants’ request and filed with the Samandağ Civil
Court of First Instance. According to these reports, the value of the
first applicant’s land together with the buildings built on it
was EUR 109,404. The second applicant’s land together with the
buildings was worth EUR 152,755. The applicants also each
requested EUR 15,000 for non pecuniary damages.
- The
Government contested the amounts.
- The Court dismisses the applicants’ claims
concerning loss of profits as being speculative. In addition the
Court reiterates that when the basis of the violation found is the
lack of any compensation, rather than the inherent illegality of the
taking of the property, the compensation need not necessarily reflect
the full value of the property (see 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 applicants’ legitimate
expectations of obtaining compensation (see 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).
- In
view of the above, the Court awards the first applicant Mr Aslan EUR
60,000 and the second applicant Mr Özsoy EUR 90,000 for
pecuniary damage.
- As
regards the applicants’ claim for compensation for
non-pecuniary damages, the Court finds that, in the circumstances of
the present case, the finding of a violation constitutes sufficient
just satisfaction (see Doğrusöz and Aslan, cited
above, § 38).
B. Costs and expenses
- The
applicants also claimed, in total, EUR 7,580 and EUR 5,085
respectively for the costs and expenses incurred both before the
domestic courts and the Court. The applicants submitted
documentation, such as fee notes, in support of their claims.
- The
Government contested the amounts.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicants, jointly, EUR 5,000
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
- 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 according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into the national currency of the respondent State at
the date of settlement:
(i) EUR
60,000 (sixty thousand euros) to Refik Aslan and EUR 90,000
(ninety thousand euros) to Ali Fuat Özsoy for pecuniary damage;
(ii) EUR
5,000 (five thousand euros), jointly, in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 30 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
