(Application no. 21482/03)
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:
Ireneu Cabral Barreto,
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:
I. THE CIRCUMSTANCES OF THE CASE
“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.”
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.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
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.”
“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.”
“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...”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“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. The parties' submissions
(a) The applicant
(b) The Government
2. The Court's assessment
II. 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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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