(Application no. 58650/00)
19 October 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 Börekçioğulları (Çökmez) and Others v. Turkey,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 28 September 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
On 8 March 1999 the Court of Cassation upheld this decision. The applicants' request for rectification was further rejected on 18 June 1999. This decision was served on them on 2 August 1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
“Everyone shall enjoy the rights of property and inheritance.
These rights may not be restricted by law save in the public interest.
The right of property may not be exercised to the detriment of the general interest.”
The relevant part of Article 46 of the Constitution, which was applicable at the material time, provided:
“The State and public legal entities shall be empowered to expropriate or charge with administrative easements, in the cases and according to the procedure prescribed by law and in exchange for prior compensation corresponding to the value of the expropriated property, all or part of the immovable property belonging to private individuals where the public interest so requires.”
B. Law no. 2942 of 4 November 1983
“Extinction of rights
In the case of immovable property subject to expropriation where the expropriation procedure has not ended or of immovable property whose expropriation has not been requested but which has been assigned to public-service use or on which buildings intended for public use have been erected, all the rights of owners, possessors or their heirs to bring an action relating to that property shall lapse after twenty years. Time shall begin to run on the date of the occupation of the property.”
C. Case-law of the Constitutional Court
“... Expropriation, as provided for in Article 46 of the Constitution ... is a restriction of the right of property in exchange for fair prior compensation...
Expropriation ... is a constitutional restriction of the right of property within the meaning of Article 35 of the Constitution. The administrative authorities may not restrict that right unlawfully in breach of the relevant legislation and the principles of expropriation. According to the provision complained of, when twenty years have passed since a de facto occupation, effected without going through a formal expropriation procedure ..., that unlawful act produces all the effects of a lawful expropriation and may give rise to registration of the property in the land registers in the name of the administrative authorities. However, de facto occupation is not provided for in the Constitution. To accept that an owner's right to bring an action lapses and that the property must be transferred to the administrative authorities twenty years after the occupation, without any consideration being given, would be contrary to the right of property and would impair the very substance of that right.
For those reasons, that rule is contrary to Articles 13, 35 and 46 of the Constitution.
... Authorising the State or public legal entities to deprive private individuals arbitrarily of their right of property and their right to compensation is contrary to the principle of the rule of law.
Moreover, a State governed by the rule of law must respect the universal principles of law in its acts. One of the general principles of law is the 'timeless' nature of the right of property, in other words it is not limited in time. The fact that over a period of twenty years the owners of an immovable property, their successors in title or their heirs have not enjoyed the rights in respect of that property that the Civil Code and the Code of Obligations confer on them, may be regarded as the lack of a de facto link with that right; it does not mean, however, that the de jure link has disappeared. A State governed by the rule of law must respect acquired rights in its acts...
Furthermore, the European Court of Human Rights has held in numerous cases that deprivation of possessions without expropriation infringes the right of property, as guaranteed by Article 1 of Protocol No. 1. In the cases of Papamichalopoulos v. Greece (no. 14556/89), Carbonara and Ventura v. Italy (no. 24638/94) and Belvedere Alberghiera S.R.L. v. Italy (no. 31524/96), de facto occupation by the Greek navy and Italian local authorities was held to be contrary to the right of property.
In the light of the above considerations, the provision complained of must be declared null and void, being contrary to Articles 2, 13, 35 and 46 of the Constitution.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
II. 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. General principles
In this connection, the Court recalls that not only must a measure depriving a person of his property pursue, on the facts as well as in principle, 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 (Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69).
The requisite balance will not be found if the person concerned has had to bear “an individual and excessive burden” (ibidem, § 73).
2. Application to the present case
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.”
They maintained that according to an experts' report, dated 2 April 2004, one square meter of the neighbouring plot was valued at TRL 827,230,000. Thus, considering the inflation and the exchange rate available at the time they have submitted their observations (i.e. 1 April 2005), the Government contended that the value of the land in question is approximately EUR 162,665.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 373,000 (three hundred seventy-three 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 Turkish liras at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 19 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič