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SECOND
SECTION
CASE OF DEVECİOĞLU v. TURKEY
(Application
no. 17203/03)
JUDGMENT
(Merits)
STRASBOURG
13
November 2008
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 Devecioğlu v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17203/03) 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 Serhat Devecioğlu
and Mrs Feriha Devecioğlu (“the applicants”), on 2
May 2003 respectively.
- The
applicants were represented by Mr M. V. Dülger, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged that the national authorities had deprived them of
their property without paying compensation and that there were no
effective remedies in domestic law to challenge the authorities' act
and to obtain compensation. They relied on Article 1 of Protocol No.
1 and Article 13 of the Convention.
- On
14 August 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1967 and 1940 and live in Muğla and
Istanbul respectively.
- In
1926, the Turkish State (the Treasury) sold a plot of land known as
the Yana Farm, located in Balıkesir, to an individual who later
sold it to the applicants' predecessors (“the Yavaş
family”).
- On
12 September 1986 the Forest Cadastral Commission (“the FCC”),
a Government agency, conducted a boundary marking exercise (tahdit
çalışması). The purpose of this exercise
was to detect forest areas which had not been included on the
cadastral map. Following this exercise the FCC established that a
portion of the Yana Farm had been unlawfully designated as
agricultural land. The FCC reclassified it as forest land.
Accordingly, on 31 July 1987, the FCC initiated a revocation
procedure for partial annulment of the title deed.
- On
11 November 1987, the applicants' predecessors, the Yavaş
family, brought an action in the Marmaris Cadastral Court since a
portion of their registered land had been classified as forest land.
They asked the court to annul the results of the boundary marking
exercise and to reclassify their land as outside the forest area.
- On
24 October 1988 the court conducted a survey of the land with the
assistance of three experts on forest, agriculture and cadastral
engineering. The forest engineer drew up a sketch map of the area and
divided it into plots named (A), (B), (C), (D), (E), (F) and (G).
Having examined the sketch map the court found that it was consistent
with the general plans and the land.
- On
9 August 1990 the Marmaris Cadastral Court ruled in favour of the
applicants' predecessors, the Yavaş family, with respect to the
plots shown as (A), (B), (C) and (F) on a sketch prepared by
court-appointed experts. However, it dismissed the request as regards
plots (D) and (G), finding that they were part of the State forest.
The Forestry Directorate appealed.
- On
16 March 1992 the Court of Cassation quashed the above ruling
considering that the Cadastral Court had erred in its assessment of
the nature of the land. It observed that, even if the natural flora
had been destroyed, the land remained forest land. It further noted
that the first-instance court had relied on the title deeds submitted
by the litigants and that the measurement of that land had been
enlarged from 8,000 sq. m to 8,640 sq. m by the judgment of the Erdek
Civil Court dated 8 September 1960. However, given that the Forestry
Directorate was not a party to those proceedings, the finding of the
Erdek Civil Court did not have any binding effect for the purposes of
the current proceedings. The Court of Cassation thus remitted the
case to the Marmaris Cadastral Court for further examination.
- On
15 June 1994 the applicants purchased the Yana Farm from the Yavaş
family. The relevant page of the log kept at the land registry office
does not contain any annotation concerning the proceedings in
question.
- On
an unspecified date, following the purchase of the Yana farm by the
applicants, the Marmaris Land Registry invited the applicants to
intervene in the proceedings. The court then joined the applicants'
case to that initiated by the Forest Directorate, who alleged that a
portion of plot no. 142/2 was within forest boundaries.
- On
18 June 1994 the Marmaris Cadastral Court carried out a second survey
of the disputed land with the assistance of new experts.
- On
4 May 1995 the Marmaris Cadastral Court dismissed the applicants'
case on the basis of the report prepared by the experts, who had
concluded that the disputed land in question was part of forest land
and that the previous group of experts had erred in their assessment.
The court then ordered the registration of the portion of land,
indicated as plot (A) in the sketch-map and measuring 1,106.91 sq. m,
with the title of the Treasury as forest land. Plot (A) was thus
separated from plot no. 2 owned by the applicants and joined to plot
no. 3 owned by the Treasury as public forest.
- On
12 December 1995, the Court of Cassation quashed this ruling on the
grounds of insufficient factual examination. In addition, the court
ruled that the right of appeal of the applicants (who had in the
meantime inherited the farm) was time-barred with regard to plots (D)
and (G). The parties accepted therefore that plots (D) and (G) were
part of the public forest.
- Thereafter,
proceedings involving re-examinations by the Court of Cassation and
the Marmara Cadastral Court continued and a new sketch of the
disputed land was prepared. The new sketch map qualified certain
portions of the land as (D1) and (F1).
- Ultimately,
on 24 November 1999, the Marmaris Cadastral Court found that plots
(A), (B), (C), (D1), (F) and (F1) were part of forest land. It noted
however that plots (C) and (E) were agricultural land. The court
dismissed the applicants' case and ruled that plot (D1), measuring
1106.91 sq. m, should be registered with the title of the
Treasury and that the remaining land, measuring 19,1768.09 sq. m,
should be registered in the name of the applicants (half the land for
each applicant). The applicants and the Forestry Directorate
appealed.
- On
30 October 2000 the Court of Cassation dismissed the applicants'
appeal. However, it upheld the Forestry Directorate's appeal only in
respect of plot (F1). The court considered that the first-instance
court had failed to rule on plot (F1) although it had found that that
plot formed part of forest land.
- On
25 December 2000 the applicants applied to the Court of Cassation for
rectification of the above decision with regard to plot (F1).
- On
13 June 2002 the Marmaris Cadastral Court ordered the registration of
plot (F1) in the name of the Treasury. It noted that the judgment
concerning plots (A), (B), (C), (D) (D1), (E), (F) and (G) had
already become final and that therefore there was no need to give a
new ruling.
- On
7 March 2002 the Court of Cassation dismissed the applicants' request
for rectification of the decision dated 25 December 2000. This
decision was served on the applicants on 11 November 2002.
- The
applicants have limited the current case before the Court to plot
(F1).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Turkish Constitution reads in its relevant part:
Article 169
“A. Protection and Development of Forests
The ownership of State forests shall not be transferred
to others. State forests shall be managed and exploited by the State
in accordance with the law. Ownership of these forests cannot be
acquired by way of prescription [...].”
- The
Turkish Civil Code provides the following relevant provisions
concerning the registration of immovable property and limitation of
rights upon it:
Article 997
“Land registry records are kept in order to
indicate the rights upon immovable property...”
Article 1004
“Immovable property is registered in the land
registry log books in the region where they are situated.”
Article 1007 § 1
“The State is responsible for the damage resulting
from the keeping of land registry records...
Cases involving the responsibility of the State are
dealt with by the courts where the [property] was registered.”
Article 1008
“The rights mentioned below regarding immovable
property are registered in the land registry log book:
1. Property;
2. Right of easement or immovable obligations; and
3. Liens”
Article 1010
“The following reasons limiting power of
disposition can be annotated in the land registry log book:
1. Court decisions relating to the protection of rights
in dispute;
...
The limitation of power of disposition, when registered,
can be raised against those who later obtained rights over the
property.”
Article 1023
“The rights of third persons who acquire a
property or right in rem, relying on the records of the land
registry log book and in good faith, shall be protected.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained that a portion of their land had been
classified as public forest without any compensation being paid to
them by the national authorities. They alleged a violation of Article
1 of Protocol No. 1 to the Convention, 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 Court notes that this complaint 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
1. The parties' submissions
(a) The applicants' arguments
- The
applicants contended that the national authorities had unlawfully
deprived them of a portion of their land (plot (F1)) without payment
of any compensation. They noted that the disputed land had been sold
by the State to an individual in 1926 and that since then it had
changed hands as agricultural land in accordance with domestic law.
The land registry office records did not contain any annotation
indicating the land as public forest or preventing it from being
sold. They had thus bought the land from its previous owner in good
faith and trusted the official records kept by the land registry
office. However, the FCC and national courts had described the land
in question as public forest despite the land registry records
proving their ownership and had unjustly dismissed their legal
challenge. The applicants further claimed that the deprivation of
their land had forced them to live in poverty because it had been the
main source of income for their family.
(b) The Government's submissions
- Referring
to the Court's case-law on the subject (see Lami Daim Namlı
and Others v. Turkey (dec.), no. 51963/99, 8 March 2005), the
Government submitted that the applicants had never had an undisputed
property right over the land in question within the meaning of
Article 1 of Protocol No. 1. In this connection, they noted that the
applicants had purchased the land at a time when the property right
of the vendor was in dispute because the proceedings concerning the
ownership of the land had been pending since 1987. The Government
claimed therefore that the applicants had not been deprived of their
property in breach of Article 1 of Protocol No. 1.
2. The Court's assessment
- The
Court reiterates that Article 1 of Protocol No. 1 comprises 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, inter alia, 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, among other authorities, Bruncrona
v. Finland, no. 41673/98, §§ 65-69, 16 November 2004,
and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR
2004-V).
- The
Court further reiterates that in determining whether there has been a
deprivation of possessions within the second “rule”, it
is necessary not only to consider whether there has been a formal
taking or expropriation of property but to look behind the
appearances and investigate the realities of the situation complained
of. Since the Convention is intended to guarantee rights that are
“practical and effective”, it has to be ascertained
whether the situation amounted to a de facto expropriation
(see Brumărescu v. Romania [GC], no. 28342/95, §
76, ECHR 1999 VII; Sporrong and Lönnroth v. Sweden,
judgment of 23 September 1982, Series A no. 52, pp. 24-28, §§ 63
and 69 74; Vasilescu v. Romania, judgment of 22 May 1998,
Reports of Judgments and Decisions 1998-III, pp. 1075-76,
§§ 39 41).
- The
Court must first determine whether the applicants had possessions
within the meaning of Article 1 of Protocol No.1 in view of the
Government's challenge to their ownership of the land in dispute. In
this connection, it notes that the applicants purchased the land in
question in 1994 from its previous owner relying on the records kept
at the land registry office, which is the sole authority for the
registration and transfer of immovable property (see paragraph 25
above). According to domestic law and practice, any limitation
concerning such property must be entered into the land registry log
book. The rights of those who acquire property relying on the records
kept by the land registry office are protected and any damage
resulting from the keeping of those records involves the
responsibility of the State (ibid.).
- This
being so, the Court notes that it does not appear that the applicants
knew or ought to have known that a portion of the land in question
was public forest since the relevant page of the land registry log
book does not contain any annotation limiting the transfer of the
land (see paragraph 12 above). Having thus purchased the land in good
faith and obtained a title deed, the applicants could legitimately
claim to be the owner of the land and pursue the legal proceedings
before the domestic courts. In other words, as holders of a title
deed attesting their ownership of the land, the applicants can be
considered to have had “possessions”, within the meaning
of Article 1 of Protocol No. 1, without any restriction until they
were deprived of their possession by a final court judgment.
- As
regards the Government's reliance on its decision in the case of Lami
Daim Namlı and Others (cited above), the Court notes
that the present case can be distinguished from it. In the former, it
found that the applicants had never had any lawful title to the land
in dispute and that, therefore, they were never safe in their belief
that they were the undisputed owners of the land in question. In the
instant case, however, following the purchase, the applicants had
been given a title deed attesting their ownership of the land by the
land registry office and they were therefore safe in their belief
that they had become the undisputed owners of the land in question.
- Having
established that the applicants were the undisputed owners of this
land, the Court considers that there was an interference with their
right to the peaceful enjoyment of their possessions, amounting to a
“deprivation” of property within the meaning of the
second sentence of the first paragraph of Article 1 of Protocol No.
1.
- As
noted earlier, it was not disputed that the applicants had acquired
plot (F1) in good faith and that they had been given a valid title
deed. However, the applicants were deprived of that land by the
national courts, who classified it as public forest, relying on
cadastral maps, expert reports and domestic law (see paragraphs 15-22
above).
- Be
that as it may, the Court notes that although there is no provision
in the Convention affording general protection for the environment,
it has recognised that in today's society such protection is an
increasingly important consideration (see Fredin v. Sweden
(no. 1), judgment of 18 February 1991, Series A
no. 192, p. 16, § 48). Furthermore, in a number
of cases the Court has dealt with similar questions and stressed the
importance of the protection of the environment (see, among many
others, Taşkın and Others v. Turkey, no. 46117/99,
ECHR 2004 X, Moreno Gómez v. Spain, no. 4143/02,
ECHR 2004 X; Fadeyeva v. Russia, no. 55723/00,
ECHR 2005 IV). In view of the foregoing, and having regard
to the reasons given by the national courts, the Court considers that
it is beyond dispute that the applicants were deprived of their
property “in the public interest” namely for the
protection of nature and forests (see Lazaridi v. Greece,
no. 31282/04, § 34, 13 July 2006). It follows that
this deprivation of property pursued a legitimate aim.
- It now needs to be ascertained whether the
interference in question struck a fair balance between the interests
of the applicants and those of society as a whole. Compensation terms
under the domestic legislation are material to the assessment of
whether the contested measure respects the requisite fair balance
and, notably, whether it imposes a disproportionate burden on the
applicants. In this regard, the Court has previously held that the
taking of property without payment of an amount reasonably related to
its value will normally constitute a disproportionate interference,
and that a total lack of compensation can be considered justifiable
under Article 1 of Protocol No. 1 only in exceptional
circumstances (see N.A. and Others v. Turkey,
no. 37451/97, § 41, ECHR 2005 X; Nastou v.
Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn
and Others v. Germany [GC], nos. 46720/99,
72203/01 and 72552/01, § 111, ECHR 2005-VI).
- In
the instant case, the applicants did not receive any compensation for
the transfer of their property to the Treasury, despite having
brought an action for damages in the Turkish courts. The lack of any
domestic remedy to afford redress for the deprivation of the
applicants' land thus impaired the full enjoyment of their right of
property. In this connection, the Court notes that the Government did
not cite any exceptional circumstances to justify the total lack of
compensation for that deprivation, the land being the main source of
income to sustain the applicants' family.
- In
view of the above, the Court considers that the failure to award any
compensation to the applicants upset, to their detriment, the fair
balance which has to be struck between the protection of property and
the requirements of the general interest (see N.A. and Others,
cited above, § 42). There has accordingly been a violation
of Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that there were no effective domestic
remedies available to them to obtain compensation for the deprivation
of their property. They relied on Article 13 of the Convention, which
reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- However,
having regard to the finding relating to Article 1 of Protocol No. 1
(see paragraphs 40 and 41 above), the Court considers that it is
not necessary to examine separately whether, in this case, there has
also been a violation of Article 13 of the Convention (see, among
other authorities, Kadriye Yıldız and Others v. Turkey,
no. 73016/01, § 33, 10 October 2006).
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.”
- The
applicants claimed 760,927.5 New Turkish Liras (TRY) (434,743.24
euros (EUR)) in respect of pecuniary damage. They explained that the
total surface of the land which had been taken by the authorities was
8,454.75 sq. m and that the market value of this land was
approximately TRY 90 (EUR 51.42) per square metre.
- The
applicants also claimed TRY 50,000 (28,571.42) for non pecuniary
damage. They noted in this connection that they had been living in
poverty since their land had been seized by the authorities. The
first applicant is a housewife who receives part of a pension from
her deceased husband and has no other income. The second applicant
was compelled to leave the country as a result of his poor financial
situation and has moved to the United States where he is struggling
to make a living in difficult conditions.
- As
regards the costs and expenses, the applicants contended that
although they and their predecessors had incurred substantial costs
during sixteen year legal struggle, between 1986 and 2002, before the
domestic courts and Strasbourg Court, a symbolic amount of EUR 30,000
would be an appropriate amount to be awarded by the Court.
- The
Government submitted that the amounts claimed by the applicants were
speculative and unsubstantiated.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 is not ready for decision and must
be reserved, due regard being had to the possibility of an agreement
between the respondent State and the applicants.
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 that there is no need to examine
separately the complaint under Article 13 of the Convention;
- Holds that the question of the application of
Article 41 of the Convention is not ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit, within three months from
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
