(Application no. 1250/02)
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:
I. THE CIRCUMSTANCES OF THE CASE
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.”
II. THE RELEVANT DOMESTIC LAW
“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.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“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.”
1. Arguments before the Court
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.
2. The Court’s assessment
II. OTHER ALLEGED VIOLATIONS 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
(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;
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
1. The equivalent of 303,806 euros, on 17 June 2005.