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SECOND
SECTION
CASE OF MUSTAFA KOÇER v. TURKEY
(Application
no. 9738/06)
JUDGMENT
STRASBOURG
21 April
2009
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 Mustafa Koçer
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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 9738/06)
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, Mr
Mustafa Koçer (“the applicant”), on 21 February
2006. The applicant was represented by Mr C Torun, a
lawyer practising in Bursa. The Turkish Government (“the
Government”) were represented by their Agent. On 5
November 2007 the President of the Second Section decided to give
notice of the application to the Government and to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3). On 25 September 2008 the President
of the Second Section refused to include in the case file the
applicant's just satisfaction claims which were filed outside the
time-limit (Rule 38 § 1).
THE FACTS
- The
applicant owned two plots of land (plots nos. 3 and 4) near the coast
in Mudanya and a house situated thereon. On 9 September 2003 the
Mudanya Court of First Instance decided to annul the title to plot
no. 4 which measured 46.60 square meters on the ground that it
was situated on the coastline which could not be subject to private
ownership. On 27 September 2004 the Court of Cassation upheld
the decision. The applicant's rectification request was rejected on
24 November 2005.
THE LAW
- The
applicant complained that the authorities had deprived him of his
property without payment of compensation, in violation of Article 1
of Protocol No. 1. The Government contested that allegation.
- The
Court notes that it has already declared admissible similar cases
(see, in particular, Abacı v. Turkey, no. 33431/02, §§
11-18, 7 October 2008, and Turgut and Others v. Turkey, no.
1411/03, § 80, 8 July 2008) and has found violations of Article
1 of Protocol No. 1 in respect of the annulment of title acquired in
good faith but later restored to State ownership without compensation
being paid (see N.A. and Others v. Turkey,
no. 37451/97, §§ 36 43, ECHR 2005 X).
It further notes the absence of sample domestic judgments where
compensation has been awarded in similar situations. Accordingly the
Court holds that the application is admissible, there being no
grounds upon which to decide otherwise. As to the merits the Court
finds no reason to depart from the conclusions of the cases cited
above. Accordingly, it finds that there has been a violation of
Article 1 of Protocol No. 1.
- As
to the just satisfaction award, the Court considers that no award
should be made to the applicant who failed to submit the just
satisfaction claim within the time allowed (see Taner
v. Turkey, no. 38414/02, §
35, 15 February 2007).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
