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SECOND
SECTION
CASE OF
AYANGİL AND OTHERS v. TURKEY
(Application
no. 33294/03)
JUDGMENT
(Merits)
STRASBOURG
6 December
2011
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 Ayangil and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33294/03) 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 four Turkish nationals, Ms Fidan Ayangil,
Ms Fatma Ayangil, Mr Mehmet Ayangil and Ms Vildan Tatlı
(Ayangil) (“the applicants”), on 2 September 2003.
- The
applicants were represented by Mrs S. Kutlay, a lawyer practising in
Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants alleged that the authorities’ interference with the
peaceful enjoyment of their property had constituted a de facto
expropriation and that their failure to compensate the damage
resulting from the said interference had breached Article 1 of
Protocol No. 1.
- On
14 September 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1952, 1930, 1950 and 1957 respectively and
live in Ankara.
- On
24 October 1967 the authorities adopted a new local construction plan
(imar şuyulandırması) and decided to merge
plots nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 and to register them
as plot no. 24 in the İncesu neighbourhood in the Çankaya
district of Ankara. Previously the applicants’ predecessors had
been the owners of plot no. 9. Following the implementation of the
said plan, the applicants’ predecessors had kept a share
measuring 480 square metres on plot no. 24 (which measures
5280 square metres in total), and owned a two-storey house on
the plot in question. Given that the aforementioned decision
designated plot no. 24 as a school area and indicated that the
buildings on this plot would be expropriated, the applicants’
predecessor, Mr İsmail Yılmaz, moved out of his house in
1969.
- In a letter dated 26 March 1984 the deputy director of
the Directorate of Education attached to
the Ankara Governor’s Office (hereinafter “the
Directorate”) sent a letter to the applicants’
predecessors, informing them that their building would be
expropriated since the Directorate was planning to build a primary
school on the land on which it was situated. The Directorate also
noted that a commission would proceed to the determination of the
value of the applicants’ building and its annexes.
- Subsequently,
the Directorate built the school. However, the Directorate did not
conclude the expropriation proceedings for the applicants’
building, which remained in the schoolyard.
- On
19 April 1995 the applicants’ predecessor filed a petition with
the Directorate requesting the return of his plot of land, which had
been occupied since the decision of expropriation in 1967 and the
construction of the school. He noted that despite the expropriation
decision, the authorities had done nothing despite continuing to
occupy his plot of land and that this situation had restricted his
right to the enjoyment of his property. He therefore asked the
authorities to overturn the decision ordering expropriation. It is
unknown whether the Directorate replied to the petition.
- In
2000, after inheriting the property in question, the applicants
brought an action seeking a declaratory judgment (tespit davası)
before the Ankara Magistrates’ Court to the effect that their
building was situated in the schoolyard. The Magistrates’ Court
appointed an expert, who found that the building in question was
indeed situated in the zone belonging to the İncesu Primary
School.
- The applicants brought an action before the Ankara
Civil Court of First Instance against the Ankara Governor’s
Office for compensation. They submitted, inter
alia, that the Directorate was in
actual possession of their property, without having conducted
expropriation proceedings, and had failed to compensate them for the
damage resulting from the interference with their property.
- In
a letter dated 12 January 2001 the Directorate informed the Ankara
Civil Court of First Instance that the Incesu primary school was
situated in block no. 8255, plot no. 24, and that the applicants
owned a share of that plot measuring 480 out of a total of 5280
square metres. It noted further that, in the local building and
settlement plan, plot no. 24 had been designated as a primary school
zone and that the building and share of the land of the applicants
had not been expropriated.
- The
Ankara Civil Court of First Instance appointed an expert, who
conducted an on-site inspection. According to his report of 9 May
2001, the building in question was situated in the schoolyard.
- On
23 May 2001 the First Instance Court partially granted the
applicants’ request for compensation and ordered the Ankara
Governor’s office to pay the applicants 99,976,950,917 Turkish
liras (TRL).
Relying particularly on the annotations in the land registry and the
response given by the Directorate as well as other evidence contained
in the file, the court found it established that the administrative
authorities were in actual possession of the applicants’
property.
- On
24 December 2001 the Court of Cassation quashed the judgment of 23
May 2001, considering that the Ankara Governor’s office could
not be considered to have been in actual possession of the
applicants’ building, since the administrative authorities had
not prevented the applicants from using the building in question. The
Court of Cassation further noted that the fact that the building was
in the schoolyard did not necessarily mean that there had been a de
facto expropriation, and concluded
that the applicants’ request should be dismissed. The case was
remitted to the Ankara Civil Court of First Instance.
- On
21 May 2002 the First Instance Court abided by the Court of
Cassation’s decision and dismissed the applicants’
request. In its decision, the court noted that the school building
and the building belonging to the applicants were both on plot no.
24, which was used by the applicants themselves. The court therefore
found that there had not been a de
facto expropriation even though plot
no. 24 had been allocated to the primary school in the local building
and settlement plan (imar planı).
- On
4 November 2002 the Court of Cassation upheld the judgment of 21 May
2002.
- On
an unspecified date the applicants requested the rectification of the
Court of Cassation’s decision of 4 November 2002, claiming that
there were clerical errors as well as errors of law in the decision.
- On
6 May 2003 the Court of Cassation granted the applicants’
request and decided to rectify the clerical errors.
- In
their observations, the applicants submitted that following the
communication of the present to the Government, the authorities had
brought road blocks to the school yard with a view to delimiting the
school yard from the applicants’ house. In this connection the
applicants furnished photos taken on 3 April 2008.
- In
a letter dated 11 April 2008, furnished by the Government, the mayor
of the neighbourhood (muhtar) stated that there were currently
a number of tenants living in the applicants’ house situated in
the yard of the Incesu primary school.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to section 7 of the Expropriation Law no. 2942, as amended in 2001,
when an expropriation decision was taken in respect of an immovable
property, the administrative authorities shall inform the relevant
land registry office for annotation of the said decision in the
register. However, if the authority fails to furnish the land
registry office, within six months of the annotation, with a document
to be obtained from a court indicating that it had determined the
price and requested the registration of the immovable property, the
land registry office shall automatically remove the annotation.
- Article 125 § 5 of the Constitution stipulates
that the administrative authorities shall be liable to compensate for
damage resulting from their actions and acts. Article 13 of Law no.
2577 on administrative procedure provides that any person who has
suffered damage as a result of an act committed by the administrative
authorities may request compensation from them. In the event of
complete or partial rejection of a compensation request, or if no
reply has been received within a time-limit of sixty days, the person
involved may initiate administrative proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained that their inability to use their property had
constituted an unjustified interference with their right to peaceful
enjoyment of their possessions and that the authorities’
failure to compensate them for the damage incurred had contravened
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
Government submitted that the applicants had failed to exhaust
domestic remedies in that they had failed to file an objection
against the local construction and resettlement plan and to request
its annulment before the administrative courts. Relying on the
Court’s decision in the case of Pınar Güngör
v. Turkey ((dec.), no. 46745/99, 6 March 2007), the Government
contended that the applicants should also have brought another action
in the administrative courts requesting the removal of the annotation
in the register kept by the land registry office and that they should
have claimed compensation for the alleged damage suffered by them in
accordance with Article 13 of Law no. 2577. Finally, the Government
contended that the applicants had not observed the six-month
time-limit as they had failed to challenge the administrative
decisions within the prescribed time-limits.
- The
applicants disputed the Government’s submissions and claimed
that they had complied with the requirements of Article 35 § 1
of the Convention by taking their case to the highest level of
jurisdiction and by lodging their application with this Court within
six months of the final domestic decision.
- The
Court reiterates that the rule of the exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention is based on the
assumption that there is an effective remedy available in respect of
the alleged breach in the domestic system. The burden of proof is on
the Government claiming non-exhaustion to satisfy the Court that an
effective remedy was available in theory and in practice at the
relevant time; that is to say, that the remedy was accessible, was
capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see V. v.
the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 IX).
- The Court also emphasises that the application of the
exhaustion of domestic remedies rule must make due allowance for the
fact that it is being applied in the context of machinery for the
protection of human rights that the Contracting Parties have agreed
to set up. Accordingly, it has recognised that Article 35 § 1
must be applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; in
monitoring compliance with this rule, it is essential to have regard
to the circumstances of the individual case. This means, amongst
other things, that it must take realistic account not only of the
existence of formal remedies in the legal system of the Contracting
Party concerned but also of the context in which they operate as well
as the personal circumstances of the applicant. It must then examine
whether, in all the circumstances of the case, the applicant did
everything that could reasonably be expected of him or her to exhaust
domestic remedies (see İlhan v. Turkey [GC], no.
22277/93, § 59, ECHR 2000 VII). It should also be
reiterated that an applicant must have made normal use of domestic
remedies which are likely to be effective and sufficient and that,
when a remedy has been pursued, use of another remedy which has
essentially the same objective is not required (see Riad and Idiab
v. Belgium, nos. 29787/03 and 29810/03, § 84, ECHR
2008 ... (extracts)).
- The
Court will examine the Government’s objections in the light of
the above principles. As regards the Government’s plea of
non exhaustion for failure to bring an action in the
administrative court for the annulment of the local construction and
resettlement plan, the Court considers that such an action could not
have yielded any result in the present application, given that the
applicants complained about restrictions which had negative
consequences on the peaceful enjoyment of their possessions in the
absence of any compensation, and not about the unlawfulness of the
plan in question (see Rossitto v. Italy, no. 7977/03, § 19,
26 May 2009).
- Concerning
the Government’s reference to an action in the administrative
courts for the removal of the annotation in question, the Court notes
that, under section 7 of the Expropriation Law, when the
administration fails to complete expropriation within six months of
the entry in the register of the annotation, the land registry office
must automatically remove the annotation in question (see
paragraph 22 above). If the land registry office fails to do so, the
stake holders have the possibility to bring an action in the civil
courts requesting the removal of the impugned annotation (see the
Judgment of 18th Chamber of the Court of Cassation, on
file no. 2005/5137 and decision no. 2005/7277, 11 July 2005).
However, in the circumstances of the present case, even assuming that
the applicants were successful in their action, this would not
terminate the restriction in question given that the local
construction plan of 24 October 1967 still foresees expropriation of
the applicants’ plot of land and designates the area as a
school zone (see Ziya Çevik v. Turkey, no. 19145/08,
§ 43, 21 June 2011).
- As
to the Government’s reliance on the Pınar Güngör
decision (cited above), the Court considers that the circumstances of
that case are different from those of the present case, given that in
the former case the applicant’s complaint solely pertained to
damage resulting from the temporary occupation of her land by the
authorities, whereas in the instant case the applicants complained
about their inability to use their plot of land and the restrictions
imposed on the use of their property by the annotation in the land
registry log book. Accordingly, having raised these complaints before
the national courts, the applicants can be considered to have
exhausted domestic remedies.
- As
regards the Government’s objection concerning the six-month
rule, the Court notes that the final domestic decision was given by
the Court of Cassation on 6 May 2003 and that the applicants
introduced their application on 2 September 2003, which was clearly
within six months. It follows that the applicants have respected the
six month time-limit under Article 35 § 1 of the
Convention.
- In
view of the above, the Court dismisses the Government’s
preliminary objections.
- The
Court notes that the application 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
- The
applicants alleged that there had been a disproportionate
interference with their right to peaceful enjoyment of their
possessions as a result of the annotation in the land registry log
book and designation of their property as a school zone. They noted
that, as a result of the annotation in the land registry log book and
the de facto occupation of their plot of land, they had been
unable to use or sell their property and that the damage incurred had
not been compensated by the national authorities.
(b) The Government
- The
Government submitted that there had been no interference with the
applicants’ right to peaceful enjoyment of their possessions
given that they had not been deprived of their property and that they
had been able to continue to use it after the implementation of the
urban plan in question.
2. The Court’s assessment
- The
Court must first determine whether the applicants can complain of an
interference with their right to peaceful enjoyment of their
possessions and, if so, whether the interference was justified.
(a) The
existence of an interference with the applicants’ right of
property
- The
Court notes that following the adoption of a new local construction
plan, the applicants’ plot of land became part of plot no. 24,
and was designated as a school zone by an annotation entered in the
land registry log book. In 1984 the authorities informed the
applicants that they would expropriate their plot of land and house,
pursuant to the decision dated 24 October 1967, with a view to
constructing a school on the plot in question (see paragraphs 6 and 7
above).
- However,
despite the eventual construction of the school, the authorities did
not expropriate the applicants’ plot of land, but used part of
it as a school yard (see paragraph 8 above). Although the
expropriation decision and the use of part of the land left intact in
law the applicants’ right to use their possessions, this
situation in practice significantly reduced the possibility of its
exercise. It has also affected the very substance of ownership as a
result of the annotation in the land registry logbook and the
restriction of the applicants’ right to use their possessions.
- The
applicants’ right of property thus became precarious and
defeasible over a long period of time (see Sporrong and Lönnroth
v. Sweden, 23 September 1982, § 60, Series A no. 52).
There was therefore an interference with the applicants’ right
of property. It remains to be ascertained whether the interference in
question breached Article 1 of Protocol No. 1.
(b) The
justification for the interference with the applicants’ right
of property
- 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 must next
determine the applicable rule.
- In
the instant case, as noted above, the authorities did not proceed to
an expropriation of the applicants’ property. The applicants
were therefore not formally “deprived” of their
possessions at any time.
- Nonetheless,
even in the absence of a formal expropriation, that is to say, a
transfer of ownership, the Court must look behind appearances and
investigate the realities of the situation complained of (Sporrong
and Lönnroth, cited above, § 36, and Van
Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A
no. 50; see also Airey v. Ireland, 9 October 1979, § 24,
Series A no. 32).
- In
this connection, the Court observes that all the effects complained
of by the applicants stemmed from the reduction of the possibility of
disposing of the property concerned. Those effects were occasioned by
limitations imposed on the right of property, namely, the designation
of the applicants’ plot of land as a school zone, and from the
consequences of those limitations on the value of their house.
However, although the right in question lost some of its substance,
it did not disappear.
- The
applicants could continue to utilise their possessions and, although
it became more difficult to sell their property on account of the use
of part of their land as the school yard, the possibility of selling
or renting it remained. Indeed, it appears from the letter of the
local mayor that the applicants’ house is currently rented out
(see paragraph 21 above).
- In
these circumstances, the second sentence of the first paragraph of
Article 1 of Protocol No. 1 does not apply in the present case (see
Scordino v. Italy (no. 2), no. 36815/97, § 71, 15
July 2004, and Matos e Silva, Lda., and Others v. Portugal, 16
September 1996, § 85, Reports of Judgments and Decisions
1996-IV).
- Furthermore,
given that the expropriation decision and the annotation in the land
registry log book were not intended to limit or control the use of
the property, since they were an initial step in a procedure leading
to deprivation of possessions, they did not fall within the ambit of
the second paragraph. Accordingly, the restriction complained of by
the applicants must be examined under the first sentence of the first
paragraph (see Sporrong and Lönnroth, cited above, §
65; Erkner and Hofauer v. Austria, 23 April 1987, §
74, Series A no. 117; Elia S.r.l. v. Italy, no. 37710/97,
§ 57, ECHR 2001-IX; Scordino (no. 2), cited above, §
73; and Köktepe v. Turkey, no. 35785/03, § 85, 22
July 2008).
- It
now needs to be ascertained whether the interference in question
struck a fair balance between the interests of the applicant and
those of society as a whole (Phocas v. France, 23 April 1996,
§ 53, Reports 1996 II).
- In
determining whether this requirement has been met, the Court
recognises that in an area as complex and difficult as that of the
development of large cities, the State enjoys a wide margin of
appreciation in order to implement their town-planning policy.
Nevertheless, the Court cannot abdicate its power of review and must
determine whether the requisite balance was maintained in a manner
consonant with the applicants’ right to the peaceful enjoyment
of their possessions, within the meaning of the first sentence of
Article 1 of Protocol No. 1 (see Sporrong and Lönnroth,
cited above, § 69, and Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005 VI).
- In
this respect, the Court notes that although the authorities commenced
expropriation procedure with a view to constructing a school on the
plot in question, they failed to do so within the time-limit
prescribed by the domestic law. Nor did they remove the annotation
entered in the land registry log book. Even after the construction of
the school no steps were taken to complete the expropriation
procedure. The Directorate continued to occupy the applicants’
land by allocating it to the primary school. As established by the
Ankara Magistrates’ Court and the Ankara
Civil Court of First Instance, the applicants’ house is
currently situated in the schoolyard and the administration is in
possession of the applicants’ plot of land (see paragraphs 10,
13 and above). The applicants’ predecessors’ attempts to
overturn the authorities’ decision of expropriation and to
regain their property did not yield any result (see paragraph 9
above). Thus, the applicants were left in a state of uncertainty as
to the fate of their property over a long period of time.
- The
compensation proceedings brought by the applicants did not yield any
result either, since the national courts concluded that the requisite
conditions of admissibility for de facto expropriation had not
been met because the applicants were still able to use their house
situated in the schoolyard (see paragraphs 15-17 above).
- While
the Court sees no reason to depart from the national courts’
finding that the interference at issue cannot be regarded as a de
facto expropriation, since it is primarily a supervisory body and
subsidiary to the national systems safeguarding human rights (see
García Ruiz v. Spain [GC], no. 30544/96, §§
28-29, ECHR 1999 I), it considers that the lack of any domestic
remedy to afford the applicants redress for the occupation of their
plot of land and the depreciation in value of their house impaired
their full enjoyment of their right to property.
- In
this connection, the Court notes that the Government did not cite any
exceptional circumstances to justify the total lack of compensation
for the interference in question, even though the domestic
legislation stipulates that the administration shall be liable to
compensate for damage resulting from its actions and acts (see
paragraph 23 above).
- 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 Sporrong and
Lönnroth, cited above, §§ 73 and 74). There has
accordingly been a violation of Article 1 of Protocol No. 1 to the
Convention.
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 350,000 euros (EUR) in respect of pecuniary damage
and EUR 200,000 for non-pecuniary damage for the stress and anxiety
suffered by them over a long period of time. As regards the costs and
expenses, the applicants claimed EUR 2,500 for the expenses they
incurred in the course of their struggle before the domestic courts.
- The
Government submitted that the amounts claimed by the applicant 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 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 to the Convention;
- Holds that the question of the application of
Article 41 of the Convention is not ready for decision,
and
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 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
