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YILDIRIR v. TURKEY - 21482/03 [2009] ECHR 1926 (24 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1926.html
Cite as:
[2009] ECHR 1926
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SECOND
SECTION
CASE OF YILDIRIR v. TURKEY
(Application
no. 21482/03)
JUDGMENT
(Merits)
STRASBOURG
24 November 2009
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 Yıldırır
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 21482/03) 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 a Turkish national, Mr Zekeriye Yıldırır
(“the applicant”), on 21 May 2003.
The
applicant was represented by Mr E. Yücel, a lawyer practising in
Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
The
applicant alleged, in particular, that the demolition of his house
constituted a violation of Article 1 of Protocol No. 1.
On
3 June 2006 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1939 and lives in Ankara.
On
the basis of a construction permit obtained on 10 August 1976,
Mr M.A. built a house in Boğazkurt, Ankara. The
construction of the house and its annexes was completed in 1978. Mr
M.A. planted trees around the house and regularly paid property tax
to the authorities. The property in question was subsequently
purchased by the applicant in 1996 (see paragraph 11 below).
In
the meantime, on 21 January 1981 the Ministry of Public Works and
Settlement notified Mr M.A. that his construction permit had expired
on 10 August 1980 and that he had not yet applied for a property
utilisation permit. In this context, he was requested to provide a
report proving that the utilisation of the property did not pose any
threat to public health or to the environment.
On
30 January 1981 the Kızılcahamam district government doctor
issued a report stating that the utilisation of the property in
question did not pose any threat to public health and that its
construction had been completed in compliance with the environmental
regulations.
On
11 February 1981 that report was submitted to the Ministry.
On
10 May 1981 Mr M.A. filed an application with the Ankara Provincial
Construction Directorate for the renewal of the construction permit.
In response, the administration notified him on 21 May 1982 that his
application was currently being dealt with.
On
18 July 1996 the applicant bought the property from Mr M.A. On the
same day, the land registry office issued him a title deed attesting
his ownership of the property. Furthermore, the village mayor
(muhtar) certified in writing that the previous owner had been
residing in the property in question since 11 August 1976.
On
11 November 1998 the Directorate of Public Works and Settlement of
the Ankara Governorship notified the applicant that the construction
on his land must be demolished as it had been completed in the
absence of the required construction permit.
On
20 November 1998 the same directorate notified the following to the
applicant:
“The construction permit for the property was
issued on 10 August 1976 and expired on 10 August 1980. An
application for the renewal of the construction permit was not filed
in time. The required property utilisation permit was not obtained
either. The property is located in the absolute protection zone,
which is the immediate zone within 300 metres of sources of drinkable
water. According to the Law on Hygiene and the Regulation on the
Prevention of Water Pollution, construction within 300 metres of
sources of drinking water and their basin is prohibited. On
11 November 1998, for these reasons, an order for the cessation
of construction was issued regarding the house. As the issue of a new
construction permit is not legally possible in these circumstances,
it is requested that the construction on your land be demolished;
otherwise it shall be demolished following the adoption of a decision
by the Ankara Administrative Council.”
On
5 January 1999 the Ankara Administrative Council issued a demolition
order based on the reasons specified in the notification of the
Directorate of Public Works and Settlement of the Ankara
Governorship.
15. On 26 February 1999 the applicant
sought the annulment of the demolition order, stating that the
construction had been completed within two years after the required
permit had been obtained, so that the issue of a new construction
permit was never required. He further maintained that the previous
owner had also applied for a property utilisation permit on
11 February 1981, attaching the requested documents to his
application, but that the administration had never responded.
16. In February 1999 the applicant
brought an action before the Kızılcahamam Civil Court to
have the legal status of his property determined.
17. On 16 February 1999 a committee of
experts appointed by the court visited the location and subsequently
issued a report stating that the house on the applicant's land had
been constructed twenty years earlier.
18. On 22 September 1999 the Ankara
Administrative Court decided that the demolition order issued by the
administrative council had to be annulled, stating as follows:
“The administration failed to prove the exact date
of the beginning and completion of the construction in question. As
it was not definite that the construction of the property still
continued after the expiry of the relevant construction permit, it
was not possible to decide on the legal status of the
construction. In the action brought by the applicant for the
determination of the legal status of the property, it was held that
the house was constructed twenty years ago. Furthermore, in a
notification issued by the Ankara Provincial Directorate it was
stated that the applicant had applied for the renewal of the
construction permit on 5 May 1981. Finally, the Law on Hygiene and
Regulation on the Prevention of Water Pollution provides that
constructions that are not in compliance with its provisions shall be
discontinued, not demolished.”
On
29 March 2001, upon the administration's appeal, the Supreme
Administrative Court quashed that judgment on the grounds that the
applicant's house had been constructed after the relevant permit had
expired.
On
6 March 2003 the Ankara Administrative Court followed the Supreme
Administrative Court's decision and dismissed the applicant's action
for the annulment of the demolition order.
On
21 April 2003 the Directorate of Public Works and Settlement of the
Ankara Governorship notified the applicant that, pursuant to the
Ankara Administrative Court's judgment of 6 March 2003, he must have
his house demolished within thirty days of his receipt of the
notification.
On
26 May 2004 the applicant's house was demolished by the
administration.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section
10 of the now defunct Zoning Law No. 6785 (6785 Sayılı
İmar Kanunu, “Zoning Law”) provided that the
period for beginning construction was one year from the date on which
a permit was issued. In the event that construction had not started
or had not been completed within four years, a new permit needed to
be obtained.
Under
section 16 of the Zoning Law the construction owner was required to
obtain permission from the Municipality in order to use the building.
A further approval was needed from the Medical Department, confirming
that there was no obstacle to the building being used. The
administration (governorship) was required to issue a permit to use
the building within thirty days of the date of the application. The
administration was deemed to have authorised the use of the completed
or partly completed building in the event that it failed to reply
within that time-limit.
The
Turkish Civil Code contains the following provisions concerning the
registration of immovable property and the rights upon it:
Article 1007 § 1
“The State is responsible for any damage resulting
from the keeping of land registry records...
Cases involving the responsibility of the State are
dealt with by the courts where the [property] was registered.”
Article 1023
“The rights of third persons who acquire a
property or right in rem, relying on the records of the land
registry log book and in good faith, shall be protected.”
Section
12 of the Administrative Procedure Law (Law no. 2577) reads as
follows:
“Any person who sustains damage as a result of an
administrative act may directly bring an action for a full remedy or
a joint action for annulment and full remedy before the Supreme
Administrative Court or Administrative and Tax Courts. They may also
first bring an action for annulment and then, upon its conclusion,
bring an action for a full remedy for the damage resulting from the
notification of the judgment or the execution of an act within the
required time-limits...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant complained that he had been deprived of his property in
circumstances which were incompatible with the requirements of
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 applicant had not exhausted all
available domestic remedies as he had failed to bring an action for a
full remedy (tam yargı davası) in the Ankara
Administrative Court against the Ankara Governorship. A full-remedy
action could have secured the annulment of the decision to demolish
the building or, alternatively, could have provided the applicant
with sufficient compensation for the property in question (see
paragraph 26 above).
The
applicant asserted that, in the absence of any favourable court
decision, a full-remedy action would be doomed to failure. He
therefore claimed that he had availed himself of all remedies in
domestic law.
The
Court reiterates that under Article 35 § 1 of the Convention,
recourse should normally be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness
(see, inter alia, Vernillo v. France, 20 February
1991, § 27, Series A no. 198, and Johnston and Others v.
Ireland, 18 December 1986, § 22, Series A no. 112).
Furthermore, in the area of the exhaustion of domestic
remedies, there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one, available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success. However, once this burden of proof has been satisfied
it falls to the applicant to establish that the remedy advanced by
the Government had in fact been used or was for some reason
inadequate and ineffective in the particular circumstances of the
case or that there existed special circumstances absolving him or her
from the requirement (see Akdivar and Others v. Turkey, 16
September 1996, § 68, Reports of Judgments and Decisions
1996-IV).
On
the above understanding, the Court notes that the applicant could
have brought an action for a full remedy in the Ankara Administrative
Court using the procedure under section 12 of the Administrative
Procedure Law. However, it points out that, in a judgment dated 6
March 2003, the same court had already dismissed the applicant's
action for the annulment of the decision to demolish his house
subsequent to the finding that the construction of the house in
question in the area was unlawful (see paragraphs 19 and 20 above).
In other words, the Ankara Administrative Court's final judgment
paved the way for the demolition of the applicant's house (see
paragraph 21 above).
In
view of the above, the Court does not consider that an action for a
full remedy, brought by the applicant in order to claim compensation
for the loss sustained as a result of the demolition of his house,
would have had any prospect of success in the circumstances of the
case. In this connection, the Court notes that the Government have
not furnished any administrative court decision demonstrating that
one can successfully bring an action for a full remedy subsequent to
an unfavourable decision in an action for annulment of an allegedly
unlawful administrative act. In the light of the foregoing, the Court
dismisses the Government's plea of non-exhaustion of domestic
remedies.
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 applicant
The
applicant contended that the national authorities had unlawfully
demolished his house without paying him any compensation. He noted
that the land registry did not contain any annotation classifying the
house as an illegal construction or preventing it from being sold. He
had thus bought the house from its previous owner in good faith and
trusting the official records kept by the land registry office.
Contrary to the Government's allegations, the previous owner of the
house had obtained the construction permit in 1976 and finished
building the house in 1978; he had started paying real estate tax
after declaring the building to the Keçiören
Municipality. He had therefore not exceeded the four-year time-limit
for completing the construction. Furthermore, the committee of
experts appointed by the Kızılcahamam First-Instance Court
had also found in 1999 that the building in question had been
constructed 20 years earlier. In view of the foregoing, the applicant
claimed that the demolition of his house without payment of any
compensation had breached his rights under Article 1 of Protocol No.
1.
(b) The Government
The
Government acknowledged that the demolition of the applicant's house
had amounted to an interference with property rights, within the
meaning of Article 1 of Protocol No. 1. However, in their opinion,
this interference had been compatible with legal certainty and had
aimed at ensuring compliance with the general rules concerning
prohibitions on construction. In this connection, they noted that the
construction permit for the building in question had been issued on
10 August 1976, in accordance with the Zoning Law. Yet, the permit
had not been renewed although its validity had expired on 10 August
1980. The permit to use the building had not been obtained either.
Accordingly, the applicant did not have “possessions”
within the meaning of Article 1 of Protocol No. 1 since their
acquisition had never been valid. In any event, it was impossible for
the authorities to issue a permit for the applicant's house since it
was located in the protected zone of the Kurtboğazı Dam,
which supplied drinking water to Ankara. The interference in question
had thus met the requirement of lawfulness and had not been
arbitrary. It had pursued the legitimate aims of preserving the
environment, protecting public health and ensuring compliance with
building regulations, with a view to guaranteeing the orderly
development of residential areas and the countryside.
2. The Court's assessment
The
summary of the relevant case-law applicable in the present case can
be found in the judgment of N.A. and Others v. Turkey (no.
37451/97, §§ 36-37, ECHR 2005 X).
The
Court notes that it is not in dispute between the parties that the
demolition of the applicant's house amounted to a “deprivation”
of property within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1.
Before
embarking upon the question whether the deprivation concerned was
justified in the circumstances of the case, the Court notes at the
outset that the applicant purchased the house in question from its
previous owner in 1996, relying on the records kept at the land
registry office. The latter, which is the sole authority for the
registration and transfer of immovable property, issued a title deed
to him, attesting his ownership of the property (see paragraph 11
above). According to domestic law and practice, any limitation
concerning such property must be entered in the land registry log
book. The rights of those who acquire property relying on the records
kept by the land registry office are protected and any damage
resulting from the keeping of those records engages the
responsibility of the State (see paragraph 25 above).
That
being so, it does not appear that the applicant knew or ought to have
known that the house was an illegal construction under the domestic
law since the land registry log book did not contain any annotation
concerning the illegality of the construction and limiting its
transfer. Indeed, the Government did not dispute that. Having thus
purchased the house in good faith and obtained a title deed, the
applicant paid the appropriate taxes and duties on it. In other
words, as holder of a title deed attesting his ownership of the
house, the applicant had a “possession” within the
meaning of Article 1 of Protocol No. 1, without any restriction,
until he was deprived of it by the local authorities.
However,
the applicant's house was demolished by the local authorities
subsequent to the decision of the Ankara Administrative Council and
the judgment of the national courts on the grounds that it was an
illegal construction which posed a threat to public health and the
environment (see paragraphs 14 and 20 above).
In
that connection, the Court notes that, although there is no provision
in the Convention affording general protection for the environment,
it has recognised that in today's society such protection is an
increasingly important consideration (see Fredin v. Sweden
(no. 1), judgment of 18 February 1991, Series A
no. 192, p. 16, § 48). Furthermore, in a number
of cases the Court has dealt with similar questions and stressed the
importance of the protection of the environment (see, among many
other authorities, Taşkın and Others v. Turkey,
no. 46117/99, ECHR 2004 X; Moreno Gómez v. Spain,
no. 4143/02, ECHR 2004 X; Fadeyeva v. Russia,
no. 55723/00, ECHR 2005 IV). In view of the foregoing,
and having regard to the reasons given by the national courts, the
Court considers that it is beyond dispute that the applicant was
deprived of his property “in the public interest”, namely
to protect public health and the environment (see Lazaridi v.
Greece, no. 31282/04, § 34, 13 July 2006). It
follows that this deprivation of property pursued a legitimate aim.
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. The right to compensation under domestic
legislation is material to the assessment of whether the contested
measure respects the requisite fair balance and, notably, whether it
imposes a disproportionate burden on the applicant. In this regard,
the Court has previously held that a deprivation of property without
payment of an amount reasonably related to its value will normally
constitute a disproportionate interference, and that a total lack of
compensation can be considered justifiable under Article 1 of
Protocol No. 1 only in exceptional circumstances (see N.A.
and Others v. Turkey, no. 37451/97, § 41, ECHR
2005 X; Nastou v. Greece (no. 2), no. 16163/02,
§ 33, 15 July 2005; Jahn and Others v. Germany
[GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR
2005-VI).
In
the instant case, the applicant did not have any realistic prospect
of success in obtaining compensation for the deprivation of his
property, given that the administrative courts upheld the Ankara
Administrative Council's demolition order (see paragraphs 33 and 34
above). The lack of any domestic remedy to afford the applicant
redress for the loss of his house thus impaired the full enjoyment of
his 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 that deprivation, even though the
domestic legislation stipulates that the State is responsible for any
damage resulting from the keeping of land registry records (see
paragraph 25 above). Thus, having recognised the applicant as the
legal owner of the house in question by issuing a title deed, the
national authorities' responsibility was automatically engaged for
the damage suffered by the applicant as a result of the demolition of
his house.
In
view of the above, the Court considers that the failure to award any
compensation to the applicant upset, to his detriment, the fair
balance which has to be struck between the protection of property and
the requirements of the general interest (see N.A. and Others,
cited above, § 42). 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.”
The
applicant claimed 57,977 Turkish liras (TRL) (approximately 27,000
euros (EUR)) in respect of pecuniary damage and TRL 100,000
(approximately EUR 46,500) for non-pecuniary damage for the stress
and anxiety suffered by his family. He did not submit any quantified
claim in respect of costs and expenses.
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;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicant 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 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
