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SECOND
SECTION
CASE OF BORA v. TURKEY
(Application
no. 14719/03)
JUDGMENT
(Merits)
STRASBOURG
9 February
2010
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 Bora 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 Sally Dollé,
Section Registrar,
Having
deliberated in private on 19 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14719/03) 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 a Turkish national, Mr Sabri Bora (“the
applicant”), on 8 March 2003.
- The
applicant was represented by Mr A Karapınar, a lawyer practising
in İstanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
27 June 2007 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 1933 and lives in İstanbul.
- In
1970 the applicant bought a share in some land (plot no. 195)
which was jointly owned by several other persons, in the Kadıköy
district of İstanbul. According to the title-deed the
applicant's share corresponded to 275/21672 of the plot. The
applicant submitted a copy of a map dated 17 June 1970 where he
is mentioned as the owner of the part of the land designated as no.
46 in plot no. 195 (hereinafter “land no. 46”), which was
around 329,50 m2 in size.
- By
decision no. 92/5 dated 12 May 1992, the Kadıköy
Municipality divided the property amongst its owners and created
separate titles. The applicant was allocated the part of the land
designated as no. 6 in plot no. 195. It appears that the
Municipality allocated parcel no. 46 to a firm.
- On
an unspecified date the applicant filed an action with the İstanbul
Administrative Court against the Kadıköy Municipality,
requesting the annulment of decision no. 92/5.
- On
5 October 1994, upon the applicant's request to prevent the transfer
of the allocated plot of land to third persons, the İstanbul
Administrative Court stayed the execution of the Municipality's
decision no. 92/5. The court noted, in particular, that, in view
of the circumstances of the case file, the application of the
Municipality's decision no. 92/5 would engender irremediable
damage.
- On
10 April 1995 the firm sold its land to another person, Mr T.M.,
who in turn sold it to Mr G.Y. on 22 August 1996.
- On
29 May 1995 the İstanbul Administrative Court annulled the part
of the Municipality's decision affecting the applicant on the ground
that it was unlawful. The court, after having examined the evidence
in the case file and the experts' report, held that the value of the
land allocated to the applicant by the Municipality's decision was
inferior to the value of the applicant's parcel, and that there was a
building on it which belonged to third persons. Therefore the
Municipality had attributed the impugned land to the applicant
without sufficient investigation and examination.
- In
the meantime, on 8 December 1994 the applicant filed an action
requesting the Kadıköy Civil Court of First Instance to
annul the title deed of the firm to land no. 46 and to register it
under his name in the land registry. Mr T.M., the owner of the land
at that time, also joined the proceedings. It appears that on 29 May
1995 the court issued a temporary injunction to
prevent to transfer of the land to third parties. On
21 December 1995 the court dismissed the case. This action ended
with dismissal on the ground that the applicant did not have locus
standi since the administrative proceedings concerning the
annulment of decision no. 92/5 were still pending before the courts.
This judgment became final on 20 June 1996 when the Court of
Cassation rejected the applicant's appeal and subsequent
rectification request. On 14 August 1996 the first-instance court
lifted the temporary injunction.
- On
9 April 1996 the Supreme Administrative Court upheld the judgment of
the first-instance court. On 25 February 1997 it dismissed the
Municipality's request for rectification of its decision.
- The
criminal proceedings instigated, upon the applicant's complaint,
against the mayor of Kadıköy, the director and co-director
of construction affairs of the Municipality and the vice chairman in
charge of construction affairs were suspended, pursuant to Law no.
4616, on 24 April 2002.
- In
the meantime, the applicant applied, without success, to various
authorities requesting their assistance in the enforcement of the
judgment given in his favour and the re-inscription of the title deed
of land no. 46 in his name. The latest such petition was dated 26
December 2001 and addressed to the Kadıköy District
Governor's Office. In this petition, the applicant referred to the
Kadıköy Municipality's response dated 2 November 2001
where he was informed that it was not possible to enforce the
judgment of 29 May 1995 and that he could lodge an action against the
firm and Mr T.M.
- According
to the land registry record dated 9 August 2007 the applicant
remained the owner of land no. 6, which is around 232 m2
in size.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Çiçek and Öztemel and Others v. Turkey
(nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02
and 30383/02, §§ 14 15, 3 May 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that he had been deprived of his land in
circumstances which were incompatible with the requirements of
Article 1 of Protocol No. 1. In this connection, the
applicant pointed out that the public authorities had failed to
execute the judgment given in his favour, in breach of Article 1 of
Protocol No. 1, which, insofar as relevant, 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...”
A. Admissibility
- The
Government maintained that the applicant had not exhausted domestic
remedies, as required by Article 35 § 1 of the Convention, since
he had failed to make proper use of the administrative and civil law
remedies available to him, pursuant to Article 41 of Law no. 818 and
Article 28 of Law no. 2577. They further maintained that
the applicant had failed to raise his complaints before the domestic
courts. Finally, the Government claimed, without any further
explanation, that the applicant had failed to comply with the
six-month rule also specified in Article 35 § 1.
- The
applicant disputed the Government's arguments.
- The
Court reiterates that it has already examined and rejected the
similar arguments by the Government in previous cases (see, for
example, Lemke v. Turkey, no. 17381/02, §§ 37-38, 5
June 2007, and Yerlikaya v. Turkey, nos. 10985/02 and
10993/02, § 22, 8 April 2008). The Court finds no particular
circumstances in the present application which would require it to
depart from that conclusion. Consequently, the Court rejects the
Government's preliminary objection.
- Moreover,
the Court finds that the applicant's 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' observations
- The
Government maintained that the applicant was not deprived of his
property since he was allocated a plot of land after the
administrative arrangement in 1992. They further submitted that the
judgment of the domestic courts could not be executed because the
land in question had been transferred bona fide to a third
person. The Government considered that the only issue was the
difference in value between the land allocated and the land due to
the applicant, and that he could have settled this dispute by lodging
a compensation claim. Finally, they maintained that the Municipality
was ready to cover the applicant's damage on account of the
difference in value between the two parcels.
- The
applicant maintained his complaint.
2. The Court's assessment
- In the instant case, it
is not disputed that the applicant owned a share in a plot of land
(no. 195) and that this share corresponded to a part of the land
designated as no. 46. It is further not disputed that the Kadıköy
Municipality's decision of 12 May 1992, whereby the applicant was
given another plot of land instead of land no. 46, was annulled by
the İstanbul Administrative Court on 29 May 1995 and that this
judgment became final after appeal proceedings. However, the national
authorities have failed to take any decision to give effect to the
İstanbul Administrative Court's judgment on the ground that land
no. 46 had been transferred to bona fide third persons. Having
regard to the circumstances of the case, particularly the manner in
which the land in question had changed hands while the proceedings
before the administrative courts were still pending, and despite the
apparent stay of execution of the Municipality's decision, the Court
considers that the reason given by the authorities, while relevant,
cannot justify such an omission in the present case in view of the
fact that the situation in question was brought about by their lack
of due diligence. Moreover, the Court, reiterating that the
obligation to enforce a court decision is not limited to its
operative part, as its merits must simultaneously be respected and
applied (see Zazanis and
Others v. Greece, no. 68138/01, § 36, 18 November
2004), finds that, in view of the impossibility of transferring land
no. 46 to the applicant, the authorities could have sought other
means of respecting the ruling of the İstanbul Administrative
Court, notably by way of allocating other land to the applicant in
plot no. 195 which would have had the same value as that of no.
46. Finally, no cogent information has been forthcoming from the
Government to demonstrate that, in view of the impossibility of
enforcing the domestic court's ruling, the authorities made concrete
and reasonable proposals to the applicant in compensation for the
financial damage he had sustained. In this connection, the Court
recalls that the applicant has been prevented from benefiting from
the success of the litigation and remains to this day the owner of
land which the domestic courts have established as not only being of
lesser value than land no. 46 but also of having a building on it
belonging to third persons.
- In
view of the foregoing, the Court finds that the national authorities
have failed to fulfil their positive obligation under Article 1
of Protocol No. 1 to enforce the judgment of 12 May 1992 (see
Burdov
v. Russia, no. 59498/00, §§ 40-42,
ECHR 2002-III, and, mutatis mutandis, Hornsby v. Greece,
19 March 1997, § 45, Reports of Judgments and Decisions
1997-II). There has, accordingly, been a violation of the said
provision.
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.”
- The
applicant claimed 800,000 euros (EUR) in respect of pecuniary damage.
This sum corresponded to the value of land no. 46. He further claimed
EUR 200,000 in respect of non-pecuniary damage. Finally, the
applicant, without specifying an amount, requested the reimbursement
for the costs and expenses incurred before the Court.
- The
Government contested these claims.
- 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 applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol no. 1;
- 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 applicant 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 which 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 9 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
