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You are here: BAILII >> Databases >> European Court of Human Rights >> ASFUROCLU AND OTHERS v. TURKEY - 36166/02 [2007] ECHR 228 (27 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/228.html
Cite as: [2007] ECHR 228

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SECOND SECTION

CASE OF ASFUROĞLU AND OTHERS v. TURKEY

(Applications nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02 and 38616/02)

JUDGMENT

STRASBOURG

27 March 2007

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 Asfuroğlu and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 6 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in eight applications (nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02, and 38616/02) 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 ten Turkish nationals, Mr Bedi Afsuroğlu, Mr Cem Pınar, Mr Cemil Özdemir, Mr Suphi Delioğulları, Mr Mehmet Afsuroğlu, Ms Hülya Matkap, Ms Seher Ekmekçi, Mr Sefik Bağdadıoğlu, Mr Edip Hadımoğulları and Mr Kerim Berrak, on 4 and 11 July and 1 October 2002.

The first eight applicants were represented by Mr Z. Emir, a lawyer practising in Hatay, and the last two applicants were represented by Mr. M. Hadimoglu, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 7 March 2006 the Court decided to give notice of the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1937, 1954, 1944, 1944, 1920, 1964, 1959, 1928, 1958 and 1958, respectively, and live in Hatay.

On various dates, the applicants bought plots of land, near the coast, in Hatay. Some of the applicants constructed houses, others built restaurants and hotels on this land.

In 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance to determine whether the applicants' land was located within the coastline area. A group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants' land and concluded that it was located within the coastline area.

Following the conclusion of the experts' report, the Treasury filed actions before the Samandağ Court of First Instance requesting the annulment of the applicants' title-deeds to the plots because of their coastal area location.

On various dates, the Samandağ Court of First Instance, after having obtained additional expert reports, upheld the request of the Treasury and decided to annul the title-deeds of the applicants. In its decisions, the court held that, pursuant to domestic law, the coast could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the land.

The applicants' appeals against the judgments of the first-instance court were dismissed by the Court of Cassation. The applicants' requests for rectification of these decisions were also rejected by the Court of Cassation.

The details are indicated in the table below:

APPLICATION NO.	NAME OF THE APPLICANT	DATE OF DECISION OF THE FIRST INSTANCE COURT	DATE OF FINAL DECISION OF THE COURT OF CASSATION	DATE OF NOTIFICATION OF THE FINAL DECISION OF THE COURT OF CASSATION
36166/02	Bedi Asfuroğlu	24.12.1999	21.01.2002	20.02.2002
36249/02	Cem Pınar	30.12.1999	14.01.2002	20.02.2002
36263/02	Cemil Özdemir	30.12.1999	17.01.2002	20.02.2002
36272/02	Suphi Delioğulları	24.12.1999	24.01.2002	06.03.2002
36277/02	Mehmet Asfuroğlu	24.12.1999	14.01.2002	20.02.2002
36319/02	Hulya Matkap Seher Ekmekci	30.12.1999	24.01.2002	06.03.2002
36339/02	Şefik Bağdadıoğlu	24.12.1999	17.01.2002	20.02.2002
38616/02	Edip Hadımoğulları Kerim Berrak	16.12.1999	28.02.2002	02.04.2002

II. THE RELEVANT DOMESTIC LAW

The relevant domestic law is set out in the Court's judgments in the cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005) and Doğrusöz and Aslan v. Turkey (no. 1262/02, § 16, 30 May 2006).

THE LAW

In view of the similarity of the eight applications, the Court finds it appropriate to join them.

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

The applicants complained that the authorities had deprived them of their property 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 submitted that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as they had failed to make proper use of the administrative and civil law remedies available to them in domestic law.

The applicants contended that there were no effective remedies in domestic law concerning their property rights.

The Court observes that the civil and administrative remedies indicated by the Government could have provided the applicants with compensation only if the records in the title-deed registry, which were in their name, had been annulled unlawfully. However, the Samandağ First Instance Court annulled the applicants' titles in accordance with the Coastal Law, holding that the plots of land in question had to remain under the authority of the State as they were located within the coastline area.

The Court therefore rejects the Government's preliminary objection. It further notes that the applications are not inadmissible on any other grounds and must, therefore, be declared admissible.

B. Merits

1. Arguments of the Parties

The Government maintained that, according to the Constitution, the coastlines belong to the State and can never become private property. They maintained that, by cancelling the applicants' titles, the Samandag Court of First Instance had actually corrected an unlawful situation. Moreover, they alleged that, since it was not possible to expropriate property which already belonged to the State, the applicants cannot be awarded compensation for the annulment of their title-deeds. However, the applicants had the right to lodge a “full remedy suit” or other claim for pecuniary damage under the Code of Obligations. Yet they failed to make use of this right.

The applicants maintained their allegations.

2. The Court's assessment

The Court has examined similar cases on previous occasions and has found violations of Article 1 of Protocol No. 1 in respect of the annulment of title-deeds or the destruction of houses, purchased in good faith, but restored to State ownership without compensation being paid (see the aforementioned judgments in N.A. and others, §§ 36 43, and Doğrusöz and Aslan, §§ 26 32). The Court finds no reason to depart from that conclusion in the present cases.

Accordingly, it finds that there has been a violation of Article 1 of Protocol No. 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION (Application no. 38616/02)

The applicants, Edip Hadımoğulları and Kerim Berrak, further complained of violations of Articles 6 and 17 of the Convention. They alleged that the domestic court's decision to annul their title-deed to the plot of land in question was unfair and against the provisions of both domestic and international law.

The Government contested these arguments.

However, 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 rejected 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 applicants claimed different amounts in respect of their pecuniary and non-pecuniary damage.

The Government contested the claims, arguing that they were unsubstantiated and excessive. Moreover, they alleged that land of this nature cannot have a market value and that the unilateral assessments of the buildings had no binding effect.

The Court reiterates that when the basis of the violation found is the lack of compensation, rather than any inherent illegality in the taking of the property, the compensation need not necessarily reflect the property's full value (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 an applicant's legitimate expectations to obtain 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, cited above, § 36).

The Court takes note of the expert reports prepared at the request of the applicants and filed with the Samandağ Civil Court of First Instance dated 6 January and 30 May 2002, and 22 August and 27 August 2003, assessing the value of the various plots of land in dispute. Accordingly, and in the light of equity, the Court awards the applicants the amounts indicated in euros (EUR) in the table below for pecuniary damage:

APPLICATION NO	NAME OF THE APPLICANT	AMOUNT
36166/02	Bedi Asfuroğlu	40,000
36249/02	Cem Pınar	80,000
36263/02	Cemil Özdemir	80,000
36272/02	Suphi Delioğulları	40,000
36277/02	Mehmet Asfuroğlu	25,000
36319/02	Hülya Matkap Seher Ekmekçi	80,000 jointly
36339/02	Sefik Bağdadıoğlu	70,000
38616/02	Edip Hadımoğulları Kerim Berrak	25,000 jointly

As regards the applicants' claim for non-pecuniary damage, the Court finds that, in the circumstances of the present cases, the finding of a violation constitutes sufficient just satisfaction (cf. the aforementioned Doğrusöz and Aslan judgment, § 38).

B. Costs and expenses

The applicants each claimed 2,000 US Dollars for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

The Government contested these claims, arguing that no credible evidence has been submitted by the applicants to support the purported lawyers' fees, and costs and expenses. They also added that the amounts claimed were excessive.

According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). In the present case, although their requests are not duly documented, the Court finds it appropriate to award the applicants, for each case in question, the sum of 500 Euros (EUR), that is to say a total of EUR 4,000. If there is more than one applicant in the same case, this sum must be paid jointly to such applicants.

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

Decides to join the applications;

Declares application no. 38616/02 admissible as regards the complaint under Article 1 of Protocol No. 1 and the remainder of the case inadmissible;

Declares the other applications admissible;

4 Holds that there has been a violation of Article 1 of Protocol No. 1 in each case;

Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

Holds

(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, the following sums for pecuniary damage;

i. application no. 36166/02, EUR 40,000 (forty thousand euros) to Bedi Asfuroğlu;

ii. application no. 36249/02, EUR 80,000 (eighty thousand euros) to Cem Pınar;

iii. application no. 36263/02, EUR 80,000 (eighty thousand euros) to Cemil Özdemir;

iv. application no. 36272/02, EUR 40,000 (forty thousand euros) to Suphi Delioğulları;

v. application no. 36277/02, EUR 25,000 (twenty-five thousand euros) to Mehmet Asfuroğlu;

vi. application no. 36319/02, EUR 80,000 (eighty thousand euros), jointly, to Hülya Matkap and Seher Ekmekçi;

vii. application no. 36339/02, EUR 70,000 (seventy thousand euros) to Şefik Bağdadioğlu;

viii. application no. 38616/02, EUR 25,000 (twenty-five thousand euros), jointly, to Edip Hadımoğulları and Kerim Berrak;

(b) within the same three months period, the respondent State is to pay the applicants, for each case in question, EUR 500 (five hundred euros), totalling EUR 4,000 (four thousand euros) for costs and expenses; if there is more than one applicant in a case, the sum of EUR 500 should be paid jointly to such applicants;

(c) plus any tax that may be chargeable to these amounts;

(d) that these sums are to be converted into new Turkish liras at the rate applicable on the date of settlement;

(e) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicants' claims for just satisfaction.

Done in English, and notified in writing on 27 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens
Registrar President