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SECOND
SECTION
CASE OF TUNCAY v. TURKEY
(Application
no. 1250/02)
JUDGMENT
STRASBOURG
12
December 2006
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 Tuncay 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 R. Türmen,
Mr M. Ugrekhelidze,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 21 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1250/02) 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 a Turkish national, Mr Mehmet Sait Tuncay (“the
applicant”), on 5 November 2001.
- The
applicant was represented by Mr S. Kar, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court
- On
21 April 2005 On 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 1948 and lives in Hatay.
- On
14 May 1980 the applicant bought a plot of land in Hatay from a third
party and registered it in his name in the title deed registry.
According to the registry’s record, the land was first owned by
the Samandağ Municipality in 1965. In 1968 it was sold to third
persons by the Municipality, and thereafter it was purchased from a
third party by the applicant.
- In
1976 the Ministry of Construction and Settlement conducted land
consolidation proceedings and defined the coastline in the area where
the land was located.
- After
he bought the land, the applicant constructed a building on it in
order to use it as a tourist facility, and in 1995 he opened up and
managed a cafeteria, after having obtained the necessary permission
from the Samandağ Municipality.
- On
26 June 1995, the Samandağ Municipality, acting on behalf of the
Treasury and relying on Law no. 3621 (the Coastal Law, 4 April 1990),
requested the Samandağ Civil Court of First Instance to
determine whether the applicant’s plot of land was located
within the coastline area.
- On
29 June 1995 a group of experts, composed of a geomorphologist, a
cartography engineer and an agricultural engineer, appointed by the
court, inspected the land and concluded that it was located within
the coastline area.
- On
5 July 1995 the Samandağ Municipality filed an action before the
Samandağ Civil Court of First Instance, on behalf of the
Treasury, requesting the annulment of the applicant’s ownership
record in the title deed registry. Furthermore, it requested the
court to issue an interim injunction in order to prevent any transfer
of that title until the end of the case.
- On
9 September 1996 the applicant filed a petition with the court
objecting to the expert report of 29 June 1995. He argued that the
expert report, which failed to take into consideration the buildings
on the land, could not be taken as a basis for the annulment of the
record in the title deed registry. Moreover, he maintained that the
Municipality had encouraged the construction of buildings in the
surrounding area, by implementing a development plan.
- The
court decided to obtain the opinion of another group of experts. On
14 September 1998, following a second inspection, the experts
confirmed the first report.
- On
16 December 1999 the Samandağ Civil Court of First Instance
upheld the request of the Treasury and decided to annul the record in
the title deed registry. It also ordered the applicant to reimburse
the legal expenses of the plaintiff.
The
summary of the court’s reasoning in its final decision is as
follows:
“At the time when the coastline had been
determined, Law no. 6785 on urbanism (9 July 1956) was in force.
The definition of the coastline found in Article 105 of Law no. 6785
is similar to the description in the Coastal Law (Law no. 3621,
4 April 1990). Article 43 of the Constitution provides that the
coasts are under the authority of the State. This assertion is also
established by Article 641 of the Civil Code, Article 33 of the
Land Registry Law and Article 16 of the Cadastral Law. Thus, coasts
cannot be subject to private property rights. As it is stated by the
Constitutional Court in its decisions dated 25 February 1986 and 18
September 1991, the construction of buildings on these lands and the
use of these buildings in good faith cannot provide a derogation from
this rule.
In the light of the above, the court decides to annul
the record in the title deed registry, which was in the name of the
applicant. Furthermore it decides to prolong the interim measure,
until the court’s decision becomes final.”
- The
applicant appealed against this decision, arguing that he had a
vested interest in this property that had to be respected by the
authorities. He maintained that he had bought the plot of land
relying on the records in the land registry and that he had paid the
real-estate tax to the Samandağ Municipality since the
registration of his title deed. Furthermore, he had obtained the
necessary permission from the Municipality in order to build and to
manage a cafeteria on it. Additionally, he claimed that the experts
had erred in their establishment of the coastline.
- On
3 October 2000, in view of the expert reports as well as the
established case law on this matter, the Court of Cassation upheld
the decision of the Samandağ Court of First Instance.
- On
19 April 2001 the Court of Cassation dismissed the applicant’s
request for rectification as none of the conditions required by
Article 440 of the Code of Civil Procedure were present in the case.
The applicant was notified of this decision on 23 May 2001.
II. THE RELEVANT DOMESTIC LAW
- Article
43 of the Constitution provides:
“The coasts are under the control and at the
disposal of the State.
Public interest has priority with regard to the
exploitation of the sea coasts, lake shores or river banks and the
coastal strip along the sea and lakes.
Taking into consideration the purpose of their use, the
width of coasts and coastal strips and the conditions in which
individuals can make use of these locations shall be determined by
law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the authorities’ had deprived him of
his land without payment of compensation, in 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.”
A. Admissibility
- The
Government maintained, firstly, that the applicant had not exhausted
domestic remedies, as required by Article 35 § 1 of the
Convention, as he had failed to make proper use of the administrative
and civil law remedies available to him in domestic law.
- The
applicant contended that there were no effective remedies in domestic
law concerning his property right.
- The
Court observes that the civil and administrative remedies indicated
by the Government could have provided the applicant with compensation
only if the record in the title deed registry, which was in his name,
had been annulled unlawfully. However, the Samandağ First
Instance Court annulled the applicant’s title in accordance
with the Coastal Law, holding that the land in
question had to be under the authority of the State as it was located
within the coastline area. This preliminary objection must
therefore be dismissed.
- Secondly,
the Government asked the Court to dismiss the application for failure
to comply with the six-month time-limit under Article 35 § 1 of
the Convention. They alleged that the 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
Court notes that, by lodging his case with the Court on 5 November
2001, 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 19 April 2001 and this decision was
notified to the applicant on 23 May 2001.
- The
Court therefore rejects the Government’s preliminary objection
regarding the six-month rule. It further notes that the application
is not inadmissible on any other grounds and must, therefore, be
declared admissible
B. Merits
1. Arguments before the Court
- The
Government maintained that, according to the Constitution, coastlines
belong to the State and can never become private property. They
maintained that, by cancelling the applicant’s title, the
Samandağ Court of First Instance had actually corrected an
unlawful situation. Moreover, they alleged that since it would not be
possible to expropriate property which already belonged to the State,
the applicant could not be awarded compensation concerning the
annulment of his title deed.
They
further maintained that the land was defined as being within the
coastal line in 1976, before the applicant purchased the property,
and was registered as a beach in the land registry since it was in a
shore area. The applicant 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 applicant’s
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.
They
alleged that in this case the good faith of the applicant seemed to
be in doubt since there was a determined sea shore line at the time
the applicant bought the plot of land and it was impossible to
consider that the applicant was not aware of all the above-mentioned
facts regarding the situation of the land.
- The
applicant submitted that in 1980, when he purchased the property, the
land was registered in the name of a third person and there was no
restriction suggesting a prohibition on individual ownership. He had
relied on this State record when he bought the land in question. He
added that he had also paid the real-estate taxes for the land at the
time of purchase and regularly since then to the revenue office and
to the Samandağ Municipality. He contended that it was the
State’s responsibility to compensate him for his loss of land
which it had unlawfully registered in the third party’s name.
2. The Court’s assessment
- In
determining whether there has been a deprivation of possessions
within the meaning of Article 1 of Protocol No. 1, it is necessary
not only to consider whether there has been a formal taking or
expropriation of property but also 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 the Sporrong and
Lönnroth v. Sweden, judgment of 23 September 1982, Series A
no. 52, pp. 24 25, § 63).
- In
this connection, the Court recalls that not only must a measure
depriving a person of his or her property pursue a legitimate aim “in
the public interest”, but there must also be a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised (ibidem, § 69). The requisite
balance will not be found if the person concerned has had to bear "an
individual and excessive burden" (ibidem, § 73).
- It
reiterates that, under the legal systems of the Contracting States,
the taking of property in the public interest without payment of
compensation is treated as justifiable only in exceptional
circumstances not relevant for the present purposes. The protection
of the right to property afforded by Article 1 of Protocol No. 1
would be largely illusory and ineffective in the absence of any
equivalent principle (Lithgow and Others v. the United
Kingdom, judgment of 8 July 1986, Series A no. 102, § 120).
- In
the present case, the Court observes that the applicant purchased the
land in dispute from the Samandağ Municipality in 1980, and it
was registered in his name, without interruption, until 2001. At the
time of purchase, there was no warning in the records prohibiting
individuals from such ownership and in fact it had first been sold by
the Municipality to a third person and so forth. The title deed was
transferred to the Treasury by the Samandağ Civil Court’s
decision of 16 December 1999, which was upheld by the Court of
Cassation on 19 April 2001. Therefore the decisions of the domestic
courts clearly had the effect of depriving the applicant of his
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 the Samandağ Civil Court’s decision to
register the land in the name of the Treasury was prescribed by law,
as it was based on the provisions of the Coastal Law, Article 43 of
the Constitution, Article 33 of the Land Registry Law and
Article 16 of the Cadastral Law, as well as being in line with the
jurisprudence of the Constitutional Court. It further notes that the
parties did not dispute the fact that the deprivation of property was
in the public interest. This fact is also noted in the decision of
the domestic courts. However, the applicant did not receive any
compensation in exchange for the transfer of his title to the
Treasury and the Government did not invoke any convincing elements
which might justify that policy.
- The Court considers that, in the absence of adequate
compensation in exchange for his property, the interference in
question, although prescribed by law, has not struck a fair balance
between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental
rights (see, mutatis mutandis, N.A. and Others v. Turkey,
no. 37451/97, §§ 41 42, ECHR 2005 ...).
- Consequently,
it concludes that there has been a violation of Article 1 of
Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained of violations of Articles 5, 6, 7, 14,
17 and 18 of the Convention.
In
this connection, he alleged that he did not feel protected by law
during the proceedings and that the domestic court’s decision
lacked detailed reasoning, which was far from convincing. He further
contended that the domestic court based its decision on a law which
did not exist at the time he bought the property, and moreover the
State itself had developed establishments near the coast.
- The
Government contested these arguments.
- An
examination by the Court of the material submitted to it does not
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly-ill founded
and must be declared inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
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.”
A. Damage
- The
applicant claimed 375,393 US Dollars (USD) in respect of his
pecuniary damage. He based his claim for pecuniary damages on an
experts’ report, dated 17 June 2005, prepared upon the
applicant’s request and filed with the Samandağ Civil
Court of First Instance. According to this report the value of the
land in dispute was 504,318
new Turkish liras. He further requested USD 100,000 for his
non-pecuniary damages.
- The
Government disputed the findings of the experts’ report
dated 16 December 2005. They contended that the land should
have been evaluated by a geologist and a geomorphologist, instead of
a construction engineer. Moreover, they alleged that land of this
nature cannot have a market value. They further contended that the
applicants’ claim for non-pecuniary damages was excessive.
- 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 (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
applicant’s legitimate expectations of obtaining compensation
(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 v. Turkey, no. 1262/02,
§ 36, 30 May 2006).
- In
view of the above, the Court awards the applicant, EUR 200,000
for pecuniary damage.
- As
regards the applicant’s 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
applicant also claimed USD 10,000 plus 17% of the amount which
obtained as compensation for his representative’s fees. He
referred to the agreement signed between him and his representative
in this respect.
- The
Government contested the claim, arguing that neither the complexity
of the case nor the economic and social realities of the country
could justify such an excessive amount of lawyers’ fees.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant EUR 4,000 in respect
of costs and expenses.
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 complaint under Article 1 of
Protocol No. 1 concerning the right to the peaceful enjoyment of
possessions admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No.1;
3. Holds that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage sustained
by the applicant;
- 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, EUR 200,000 (two hundred
thousand euros) in respect of pecuniary damage, and EUR 4,000 (four
thousand euros) in respect of costs and expenses, plus any tax that
may be chargeable, to be converted into new Turkish liras at the rate
applicable on the date of settlement;
(b) that
from the expiry of the abovementioned three months until settlement
simple interest shall be payable on the above amount[s] 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 12 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
