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MOREL v. TURKEY - 33663/02 [2007] ECHR 471 (14 June 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/471.html
Cite as:
[2007] ECHR 471
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THIRD
SECTION
CASE OF MÖREL v. TURKEY
(Application
no. 33663/02)
JUDGMENT
STRASBOURG
14 June 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 Mörel v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I.
Ziemele, judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33663/02) 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 Erkan Mörel (“the
applicant”), on 12 August 2002.
The
applicant was represented by Mr H Kaplan, a lawyer practising in
Istanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
The
applicant complained of having been deprived of his property as the
authorities expropriated his land without notifying him. He also
complained of the unfairness of the proceedings.
On
23 September 2005 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 1944 and lives in Istanbul.
He
is the grandson of Ayşe Saide Ergun, who was one of the joint
owners of a 255,951 m² plot of land in Çorlu. The
applicant's share corresponds to 4,000 m² of the land in
question. The applicant's right of succession is established by four
different court decisions dated 7 March 1973, 12 July 1974,
5 January 1982 and 12 February 1996. However, the title of the
land in question was registered, among others, in the name of Ayse
Saide Ergun.
On
6 April 1988 the Ministry of Defence informed the Çorlu
Municipality that the land in question was going to be
expropriated. It communicated to the Municipality the names of the
owners who were mentioned on the title deed and requested the
relevant tax declarations, in order to determine their addresses.
However, only the original owners' first names and the first names of
their fathers appeared on the title deed.
In
its letter of 22 April 1988 the Municipality was only able to submit
the tax declarations in respect of some of the owners. They informed
the Ministry that since they had not been communicated sufficient
information on the identity of some of the owners, they were unable
to find their tax declarations.
The
village headman, the title registry office, the birth registration
office, the gendarmerie and the police department in Çorlu
also informed the Ministry that they had been unable to ascertain the
addresses of the owners, as their last names and their birth
registrations were not communicated to them.
On
3 May 1988 it was announced in a local newspaper that the property in
question had been expropriated. It was also noted that a committee of
experts would be assessing its value on 5 May 2005. On the said date
the committee of experts assessed the value of the land at
255,951,000 Turkish liras (TRL).
On
26 December 1988 and 10 January 1989 the Municipality announced the
expropriation of the land over loudspeakers, throughout the town. On
28 December 1988 it was announced, in another local paper, that the
compensation for expropriation was deposited in a bank account, in
the name of the owners, including that of the applicant's
grandmother. In January 1989, the same notification was published
also in a national newspaper. In all these publications only the
original owners' first names and the first names of their fathers
were mentioned.
On
30 July 1991 the property in question was registered in the name of
the Treasury.
On
10 November 1996 the applicant and some of the heirs, who were the
joint owners of the land in question, became aware of the
expropriation of their property.
On
23 November 1996 the applicant, together with four other heirs, filed
an action for additional compensation before the Çorlu Civil
Court of First Instance, against the Ministry of Defence.
The
Ministry requested the court to dismiss the case for failure to
comply with the statutory time-limit. The plaintiffs argued that the
authorities failed to notify them of the expropriation of their
property. They contended that the notifications were deprived of any
legal effect as they were made in the name of their deceased
ancestors.
In
November 1997 a group of experts, appointed by the court, inspected
the land and concluded that the total amount of additional
compensation that had to be paid to the plaintiffs was
TRL 44,450,601,360. The applicant's share amounted to TRL
2,247,668,465.
On
18 February 1998 the court maintained that the Ministry breached the
rules of notification as provided in Article 13 of the Law on
Expropriation. It noted that the authorities merely notified the
expropriation by publishing it in a newspaper, without making an
extensive enquiry, as required in Article 7 of the Law on
Expropriation. It also noted that the authorities could have also
issued a notification through the notary. The Çorlu Civil
Court of First Instance therefore dismissed the Ministry's
preliminary objection and upheld the plaintiffs' request by
increasing the expropriation fee together with an interest rate which
would run from 5 July 1989, the supposed date on which
several of the owners renounced their property right over the land in
question. Relying on the expert report of November 1997, it awarded
the applicant TRL 2,247,668,465.
On
5 November 1998 the Court of Cassation upheld the decision of the
first instance court by modifying the date from which the interest
rate would run. It held that the interest should begin to run from
26 December 1996 the date on which the property was transferred
to the Ministry.
Following
the Ministry's request, on 22 February 1999, the Fifth Chamber of the
Court of Cassation rectified the decision of 5 November 1998. It
held that although the authorities had followed the procedure
prescribed in Article 7 of the Law on Expropriation they were unable
to ascertain the addresses of the owners. The court maintained that
the fact that there were no tax declarations for these properties was
also confirmed in the Çorlu Municipality's letter dated 22
April 1988. The Court of Cassation consequently rectified its
decision of 5 November 1998 and quashed the decision of the first
instance court.
On
15 June 1999 the Civil Court of First Instance followed the reasoning
of the Court of Cassation. It held that the Ministry had to notify
the owners through publication, since it had been unable to determine
the addresses, even after carrying out all necessary inquiry. It
therefore dismissed the applicant's case for failure to comply with
the statutory time-limit.
On 7 October 1999 the Court of
Cassation upheld the decision of 15 June 1999.
On
5 May 2000 the applicant and the other heirs requested the reopening
of the proceedings.
On
15 February 2001 the Çorlu Civil Court of First Instance asked
the Çorlu Municipality and the Çorlu Tax Department
whether the owners and their heirs paid any tax for the land in
question. All the names communicated in this letter were mentioned in
full.
The
Çorlu Tax Department advised the Ministry to refer to the
Municipality, as all property tax declarations as of 1986 were handed
over to the municipalities. Whereas, tax declarations which dated
before 1986 were submitted for paper recycling.
Later on the same day, the Çorlu
Municipality informed the court that they were in possession of tax
declarations in respect of the land in question, for the years of
1986, 1990, 1994 and 1998, which contained some of the addresses. It
also attached to its letter copies of sixteen property tax
declarations for the year 1986. According to these declarations,
Sermet Ergun, who was the son of Ayşe Saide Ergun and the uncle
of the applicant, together with his co-owners paid a total of TRL
2,175 in total, for their property of 11,682 m2.
On
23 February 2001 the Çorlu Civil Court of First Instance
dismissed the plaintiff's request for rectification.
On
24 January 2002 the Court of Cassation upheld the decision of the
first instance court. It observed that the authorities tried to find
the owners by relying on the information found in the title registry.
It noted that it was evident that the original owners were deceased
and that the heirs paid their tax duties concerning these lands. It
concluded however, that the fact that the tax department did not
inform the authorities about the names and addresses of the owners
did not render the notification, which had been carried out by the
Ministry of Defence in accordance with Article 7 of the Law of
Expropriation, void of effect.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Law no. 2525
On
21 June 1934, in accordance with the Law no. 2525, all Turkish
citizens, who were, until then, referred to by their first name and
the first name of their father, were requested to adopt a family
name.
2. Law no. 2942
Article
7 of the Law on Expropriation (Law no. 2942) provides that the
expropriating authority is required to establish ownership and
ascertain the addresses by making an enquiry at the title registry,
tax department, and birth registry. Moreover they are further
expected to make everything that is necessary to contact the owners.
Article 13 of the same Law provides that if the addresses of the
owners are not found, then the expropriation should be notified by
publication.
Following
the decision to expropriate a property, a
committee of experts is requested to assess the value of the land.
This amount is deposited in a bank account, in the name of the
owners. Subsequently, all related documents are brought to the
attention of the owners either by issuing a notification through a
public notary or, when that is not possible, by way of publication
(Article 10). If the owners do not request the annulment of the
decision to expropriate, even if they file an action for additional
compensation, all property rights over the land in question are
transferred to the administration within 30 days from notification
(Article 14).
THE LAW
The
applicant complained under Article 1 of Protocol No. 1 that he was
deprived of his right to peacefully enjoy his property as the
authorities expropriated his land without notifying him.
He
also complained under Article 6 of the Convention that he did not
have a fair hearing as the Court of Cassation dismissed his case for
failure to comply with the statutory time-limit.
Relevant
Articles of the Convention provide as follows:
Article 6
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
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.”
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.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained that he has been unjustifiably deprived of his
property. He argued that the authorities did not pay sufficient
compensation for the expropriation of his land. Moreover, by failing
to notify him of the expropriation of his land
and by subsequently refusing his action for additional compensation
for failure to comply with the statutory
time-limit, they have impeded his only chance to compensate
for his loss.
The
Government contended that the expropriation was enforced by the
Ministry of Defence, pursuant to the provisions of Law no. 2946, in
the public interest. Furthermore they maintained that the authorities
had showed due diligence in searching for the identity and addresses
of the owners. However, since they were unable to determine the
relevant information, the expropriation had to be notified by
publication, by mentioning the names of the ancestors. Nevertheless,
block and plot numbers of the expropriated property were included in
each of these publications.
The
Court reiterates that Article 1, which guarantees in substance the
right to property, comprises three distinct rules (see James and
Others v. the United Kingdom, judgment of 21 February
1986, Series A no. 98, § 37). The first rule, which is
expressed in the first sentence of the first paragraph and is of a
general nature, lays down the principle of the peaceful enjoyment of
property. The second rule, in the second sentence of the same
paragraph, covers deprivation of possessions and subjects this notion
to certain conditions. The third rule, contained in the second
paragraph, recognises that the Contracting States are entitled,
amongst other things, to control the use of property in accordance
with the general interest. The second and third rules, which are
concerned with particular instances of interference with the right to
the peaceful enjoyment of property, are to be construed in the light
of the general principle laid down in the first rule.
In the present case,
it is not disputed that there was an interference with the right to
peaceful enjoyment of a “possession” within the meaning
of Article 1 of Protocol No. 1. It is also not disputed that this
interference was “provided for by law”, and it
pursued a legitimate aim, in other words there was a “public
interest”, as required by
Article 1 of Protocol No. 1.
37. On
the other hand, the parties disagreed about the legitimacy of that
interference. The Court must accordingly determine whether it
complied with the principle of proportionality for the purposes of
the second rule laid down in Article 1 of Protocol No. 1.
An interference with the peaceful enjoyment of
possessions must strike 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, among other
authorities, Sporrong and Lönnroth v. Sweden,
judgment of 23 September 1982, Series A no. 52, p. 26, § 69).
The concern to achieve this balance is reflected in the structure of
Article 1 of Protocol No. 1 as a whole, including therefore the
second sentence. In particular, there must be a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised by any measure depriving a person of his
possessions (see Pressos Compania Naviera S.A. and Others v.
Belgium, judgment of 20 November 1995, Series A no. 332, §
38).
In
this connection, the Court has already found that the taking of
property without payment of an amount reasonably related to its value
will normally constitute a disproportionate interference and a total
lack of compensation can be considered justifiable under Article 1 of
Protocol No. 1 only in exceptional circumstances (see The
Holy Monasteries v. Greece, judgment of 9 December
1994, Series A no. 301-A, p. 35, § 71; The Former King of
Greece and Others v. Greece, [GC],
no. 25701/94, § 89, ECHR 2000 XII; and Jahn
and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, § 94, ECHR 2005 ...).
The
Court considers that it should first examine, in the present case,
whether there had been an adequate notification of the expropriation
in question.
It
notes that, following the Ministry's decision to expropriate the land
in question, the Municipality, the village
headman, the title registry office, the birth registration office,
the gendarmerie and the police department in Çorlu had been
communicated the names of the owners which were noted on the title
deed and had been requested to carry out an enquiry to find their
addresses. As these authorities were unable to find the requested
information in their registries, the expropriation was notified by
way of publication. However, the information found in these
publications was not complete, since only the first names of the
actual owners' ancestors and the first names of their fathers were
mentioned.
The
Court observes that a number of elements in the case raise doubts as
to whether the Turkish authorities, contrary to the Government's
observations, had showed diligence in their duty to determine the
names and addresses of the owners and to notify them of the
expropriation of their land.
Firstly,
the Court notes that the Municipality was unable to find the
relevant tax declarations when they were first asked by the Çorlu
Civil Court of First Instance, in 1988. However thirteen years
later, in 2001, when the court again made the
same request, the Municipality informed them that they were in
possession of the tax declarations of the land in question, for the
years 1986, 1990, 1994 and 1998. They subsequently submitted copies
of sixteen property tax declarations, for 1986, made by the
applicant's ancestor Sermet Ergun and his joint owners.
Secondly,
according to the court decisions confirming the applicant's right of
succession, Ms Ayse Saide Ergun, mentioned by her first name only in
the publications, was born in 1885. Therefore, she was most probably
deceased at the time of the events giving rise to this application.
Nonetheless, the authorities issued several notifications, trying to
reach her.
Thirdly,
the Court considers that it is the state authorities' duty to update
the information and to organise the archives of the public
registries. Considering that the owners in question had a family name
since the coming into force, in 1934, of Law no. 2525, the
authorities' failure to ascertain their full names is not acceptable.
The
Court therefore concludes that the authorities did not show due
diligence in notifying the applicant of the expropriation of the
land.
In
view of this finding, it remains to be determined whether, in the
context of a lawful deprivation of property, the applicant had to
bear a disproportionate and excessive burden.
The
Court observes that, on 18 February 1998 the Çorlu
Civil Court of First Instance dismissed the Ministry's
preliminary objection concerning compliance with the statutory
time-limit. Furthermore, it held that the compensation which was paid
to the applicant for the expropriation of his land was insufficient
and ordered the Ministry of Defence to pay an additional sum. This
decision was upheld by the Court of Cassation's decision of 5
November 1998. However, upon the Ministry's request, the
Court of Cassation rectified its decision. It held that the
notification in question was carried out in accordance with the law.
Subsequently the Çorlu Civil Court of
First Instance dismissed the applicant's claim for additional
compensation by holding that his case had been lodged out of the
statutory time-limit (paragraphs 18-21 above).
The
Court observes that the domestic courts' dismissal of the applicant's
claim caused him to sustain a loss, additional to that of the
expropriated land. It therefore finds 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.
As
a result, the Court considers that the applicant has been deprived of
his property without adequate compensation, in breach of Article 1
of Protocol No. 1.
There
has therefore been a violation of this Article.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 § 1 of the Convention that
he did not have a fair hearing as the Court of Cassation arbitrarily
dismissed his case for failure to comply with the statutory
time-limit. He contended that he was prevented from having his civil
claim determined by the domestic court as a consequence of the
inadequate notification.
The
Government contested this argument.
In
the light of its findings with regard to Article 1 of Protocol No. 1
(paragraph 50 above), the Court does not consider that a
separate examination of the merits of the case under Article 6 §
1 is necessary.
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 sought pecuniary compensation in the sum of 96,587 euros
(EUR), which included the value of his property and the loss of
income, calculated on the basis of the experts' report, which was
used by the domestic court in its judgment of 18 February 1998
(paragraph 17 above), and together with the interest running
from 1997. Furthermore, they claimed EUR 10,000 in respect of
non pecuniary damage.
The
Government argued that the applicant's claim for pecuniary damage was
exaggerated and unsubstantiated. They alleged that the expert report
on which the applicant based his claim was not binding. They claimed
that this report merely assessed the value of the land and did not
establish the applicant's ownership over the property in question.
Moreover, they submitted that, if the Court were to find a violation
of the Convention in the present case, this would in itself
constitute sufficient compensation for any non-pecuniary damage
allegedly suffered by the applicant.
Relying
on the domestic courts' decisions of 18 February 1989 and 5 November
1989, using the same method of calculation as in the Aka
v. Turkey judgment (23 September 1998, Reports of
Judgments and Decisions 1998 VI, pp. 2683-84, §§
55-56) and having regard to the relevant economic data, the Court
awards the applicants EUR 30,400 for pecuniary damage, to be
converted into new Turkish liras at the rate applicable at the date
of settlement
The Court observes that the applicant sustained actual
non-pecuniary damage. Ruling on an equitable basis, the Court finds
that in the circumstances of the present case finding a violation
constitutes sufficient satisfaction.
B. Costs and expenses
The applicant also claimed EUR 7,000 in respect of the
costs and expenses incurred before the domestic courts and the Court.
Furthermore he requested EUR 5,000 in respect of his lawyer's fee. He
referred to the agreement signed between him and his representative
in this respect. However, he did not submit any receipt or invoice
regarding these expenses.
The
Government disputed these claims.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. In the present case, regard being had to the information in
its possession and the above criteria, 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 application admissible;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that there is no need to examine the
complaint under Article 6 of the Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
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, the following sums, to be
converted into new Turkish liras at the rate applicable at the date
of settlement:
(i) EUR
30,400 (thirty thousand and four hundred euros) for pecuniary damage,
(ii) EUR
4,000 (four thousand euros) for costs and expenses,
(iii) plus
any tax that may be chargeable;
(b) that
from the expiry of the abovementioned 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
