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SECOND
SECTION
CASE OF
ABACI v. TURKEY
(Application
no. 33431/02)
JUDGMENT
STRASBOURG
7
October 2008
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 Abacı v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33431/02) 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, Mrs Kerime Abacı (“the
applicant”), on 1 May 2002.
- The
applicant was represented by Mr Z. Işık, a lawyer
practising in Hatay. The Turkish Government (“the Government”)
were represented by their Agent.
- On
5 November 2007 the Court 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 1938 and lives in Hatay.
- On
15 September 1993 the applicant bought a
plot of land (plot no. 1241), near the coast in Hatay. The land
was registered in the applicant's name in the Land Registry. She
built a house there.
- On
4 July 1995 the Treasury brought an action before the Samandağ
Court of First Instance, requesting the annulment of the applicant's
title deed to the land on the ground that it was located within the
coastal area.
- On
16 December 1999 the Samandağ Court of First Instance upheld the
Treasury's request and decided to annul the title deed of the
applicant to the plot of land. In its decision, the court held that,
pursuant to domestic law, coastal areas could not be subject to
private ownership and that, therefore, the applicant could not rely
on the argument that she had acted bona fides.
- On
16 May 2001 the Court of Cassation upheld the judgment of the
first-instance court. On 14 January 2002 a request by the applicant
for rectification was rejected by the Court of Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in
force at the material time are outlined in the Doğrusöz
and Aslan v. Turkey judgment
(no. 1262/02, § 16, 30 May 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the authorities had deprived her of her
property without payment of compensation, in violation of Article 1
of Protocol No. 1, which, in so far as relevant, 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...”
A. Admissibility
- The
Government submitted that the applicant had not exhausted domestic
remedies, as required by Article 35 § 1 of the Convention, as
she had failed to make proper use of the civil law remedies available
to her in domestic law. In this respect they presented a recent
rectification decision of the Court of Cassation (dated 9 July 2007)
which had quashed a first-instance court judgment on the ground that
compensation to the owner of the title deed to land situated within
the coastal area had not been awarded although the title-deed had
been annulled. In two other decisions presented by the Government
(dated 23 October 2007 and 1 November 2007) the Court of Cassation
upheld first-instance court judgments which annulled the title deeds
but, with reference, inter alia, to the Court's judgments on
the right to property, held that the owners of the title deed had the
right to claim compensation before civil courts.
- The
applicant contested the Government's arguments.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants first to use the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness
(see Burden and Burden v. the United Kingdom, no. 13378/05,
§ 35, ECHR 2006 ...). In addition, 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 (see
Nnyanzi v. the United Kingdom, no. 21878/06,
§ 42, 8 April 2008)
- The
Court reiterates that it has already examined and found the domestic
remedies referred by the Government in previous similar cases to be
ineffective (see, for example, Doğrusöz and Aslan,
cited above, § 22, and Asfuroğlu and Others v.
Turkey, nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02,
36319/02, 36339/02 and 38616/02, § 15, 27 March 2007).
- As
regards the Government's submissions on the availability of domestic
remedies, the Court welcomes the recent interpretation of the Court
of Cassation in cases concerning the annulment of title deeds to land
located within the coastal area (see paragraph 11 above). However, it
observes that there appears to be, so far, no example of compensation
being awarded in such cases. The one example in which the Court of
Cassation quashed the judgment in this respect (idem) seems to
be pending before domestic courts. The Court further reiterates that
in the instant case the applicant's appeal and the following claim
for rectification were dismissed by the Court of Cassation on 16 May
2001 and 14 January 2002 respectively.
- Consequently,
the Court holds that the applicant, in the instant case, cannot be
expected to initiate new proceedings claiming compensation for a
title deed that had been annulled by a court order, the final
decision having been delivered some six years ago.
- In
the light of the foregoing, the Court concludes that the Government's
preliminary objection of non-exhaustion must be dismissed. This
ruling is confined to the circumstances of the present case and is
not to be interpreted as a general statement that the recent approach
of the domestic courts is ineffective or that applicants are absolved
from the obligation under Article 34 to have recourse to the system
of remedies which are available and functioning.
- The
Court further notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Government maintained that, according to the Constitution, the
coastal area belongs to the State and cannot become private property.
They argued that the applicant should have been aware that the use of
property in a shore area owned by the State could not lead to
ownership. Therefore, the entry of the applicant's name in the Land
Registry was contrary to the Constitution and the laws applying at
the material time, and the illegal transaction was corrected by the
Samandağ Court of First Instance.
- The
applicant maintained her allegations.
- 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 acquired in good faith but later restored to State
ownership without compensation being paid (see Doğrusöz
and Aslan, cited above, §§ 26 32, and Aslan
and Özsoy v. Turkey, nos. 35973/02 and 5317/02, § 21,
30 January 2007). The Court finds no reason to depart from that
conclusion in the present case.
Accordingly,
it finds that there has been a violation of Article 1 of Protocol
No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant also complained under Article 6 § 1 of the Convention
that the domestic court decision was unfair, biased, insufficiently
motivated and against the provisions of both domestic and
international law.
- The
Government contested these arguments.
- An
examination by the Court of the material submitted to it does not
disclose any appearance of a violation of this provision. 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
applicant claimed 150,000 euros (EUR) in
respect of pecuniary damage. She based her claim for pecuniary
damages on an expert report dated 2 October 2001, prepared at the
first-instance court's request. According to this report the value of
the land in dispute was 64,114,470,000 Turkish liras (TRL).
She further claimed 15,000 US dollars in respect of
non-pecuniary damage.
- The Government contested these
claims, arguing that they were unsubstantiated, speculative and
excessive.
- The
Court reiterates that when the basis of the violation found is the
lack of any compensation, rather than the inherent illegality of the
taking, the compensation need not necessarily reflect the full value
of the property (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 the applicant's legitimate expectations to obtain
compensation.
- In
view of the above, the Court awards the applicant EUR 40,000 for
pecuniary damage.
- As
regards the applicants' claim for non-pecuniary damages, the Court
finds that, in the circumstances of the present cases, the finding of
a violation constitutes sufficient just satisfaction (see Doğrusöz
and Aslan, cited above, § 38, and Adil
Özdemir v. Turkey, no.
36531/02, § 42, 10 May 2007).
B. Costs and expenses
- The applicant also claimed TRL
832,130,000 [approximately EUR 426] in respect of the costs and
expenses incurred before the domestic courts and 519.20 New Turkish
Liras (YTL) [approximately EUR 267] for those incurred before the
Court. In this respect she referred to a number of receipts issued by
her representative and the domestic courts. She added that some of
the expenses could not be documented.
- The Government contested the
claims.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant the total sum
claimed, EUR 693, 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 complaint under Article 1 of Protocol No. 1 admissible and the
remainder of the application inadmissible;
- Holds
that there has been a violation of Article 1 of Protocol No. 1;
- 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 according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
40,000 (forty thousand euros), plus any
tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
693 (six hundred and ninety-three euros),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(b) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise Tulkens
Deputy Registrar President
