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 ,
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 SallyDolléSection Registrar,
Having deliberated in private on 3 November 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  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.
2.  The applicant was represented by Mr E. Yücel, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicant alleged, in particular, that the demolition of his house constituted a violation of Article 1 of Protocol No. 1.
4.  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
5.  The applicant was born in 1939 and lives in Ankara.
6.  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).
7.  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.
8.  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.
9.  On 11 February 1981 that report was submitted to the Ministry.
10.  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.
11.  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.
12.  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.
13.  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.”
14.  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.”
19.  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.
20.  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.
21.  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.
22.  On 26 May 2004 the applicant's house was demolished by the administration.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
23.  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.
24.  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.
25.  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.”
26.  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
27.  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.”
28.  The Government contested that argument.
A.  Admissibility
29.  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 () 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).
30.  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.
31.  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, , , 20 February 1991, § 27, Series A no. 198, and , 18 December 1986, § 22, Series A no. 112).
32.  Furthermore, in the area of the  of  , 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 , 16 September 1996, § 68,  1996-IV).
33.  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).
34.  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.
35.  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
36.  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
37.  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
38.  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).
39.  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.
40.  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).
41.  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.
42.  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).
43.  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, 2004‑X; Moreno Gómez v. Spain, no. 4143/02, 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.
44.  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; , no. 16163/02, § 33, 15 July 2005;  [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005-VI).
45.  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. 
46.  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
47.  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.”
48.  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.
49.  The Government submitted that the amounts claimed by the applicant were speculative and unsubstantiated.
50.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3.  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