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SECOND
SECTION
CASE OF ERBEY v. TURKEY
(Application
no. 29188/02)
JUDGMENT
(Merits)
STRASBOURG
8 January 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 Erbey v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29188/02) 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 Cemil Erbey (“the
applicant”), on 23 May 2002.
- The
applicant was represented by Mr E. Şahin, a lawyer practising in
İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
12 June 2007 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 1926 and lives in İzmir.
- On
23 February 1998 the applicant bought a plot of land (plot no. 536
in the Ulucak village, in the Menemen district of İzmir) from
the heirs of V.G.
- On
13 July 1999 the Ministry of Agriculture (“the Ministry”)
brought an action before the Menemen Civil Court, requesting the
annulment of the title deed of the applicant to plot no. 536 and its
registration in the Treasury’s name, claiming that it had had
actual possession of this land since 1966. The Ministry primarily
relied on Article 38 of the Expropriation Act (Law no. 2942). The
Ministry also alleged that an expropriation had been effected in
relation to the said land in 1966 and that V.G. had received
compensation for it. However, the land register had not been amended
due to an administrative error.
- On
20 December 2000 the Menemen Civil Court accepted the request of the
Ministry of Defence and ordered that the land be registered in favour
of the Treasury in accordance with Article 38 of Law no. 2942. In its
judgment, the first-instance court noted that the Ministry had been
in actual possession of this land for more than twenty years and that
the applicant had been aware of this fact when he had bought the
plot.
- The
applicant appealed.
- On
17 September 2001 the Court of Cassation upheld the judgment of
20 December 2000.
- The
applicant requested rectification of the decision of
17 September 2001.
- On
24 December 2001 the Court of Cassation dismissed the applicant’s
request.
- On
4 January 2002 the Court of Cassation’s decision was served on
the applicant.
- On
10 April 2003 the Constitutional Court annulled Article 38 of Law
no. 2942.
II. RELEVANT DOMESTIC LAW
- A
full description of the domestic law may be found in Börekçioğulları
(Çökmez) and Others v. Turkey (no. 58650/00, §§
23-29, 19 October 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that the deprivation of his land without
compensation amounted to a violation of Article 1 of Protocol No. 1.
- The
Government contested that argument.
A. Admissibility
- 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
- The
Government maintained that the impugned plot had been expropriated in
1966 and compensation had been paid to V.G., the owner of the land at
the material time. In view of this expropriation, which had been
effected long before its purchase by the applicant, the Government
argued that the applicant had never had a legitimate property right
to the land in question. To support their allegations, the Government
submitted a document dated 13 September 1966, which notified V.G.
through the notary public of the expropriation decision and further
informed him that the relevant compensation would be deposited at a
public bank.
- The
applicant contested these submissions. He argued that the
expropriation of the plot had never been completed as alleged by the
Government as the expropriation compensation had never been deposited
with the bank and hence the title deed register had never been
amended in favour of the Treasury.
- The
Court observes in the first place that despite its allegations
concerning the expropriation of the disputed plot, the Government
cannot produce any evidence to prove that any payment was made in
relation to this expropriation to finalise it. In these
circumstances, and bearing in mind the ownership status at the title
deed register prior to the judgment of the Menemen Civil Court on 20
December 2000, the Court believes that there is not enough evidence
to conclude that the impugned land was effectively expropriated by
the Ministry at any point.
- Secondly,
the Court observes that regardless of whether any expropriation was
effected in 1966 or not, the Menemen Civil Court relied on no reasons
other than section 38 of Law no. 2942 in ordering the registration of
the land in favour of the Treasury. In these circumstances, the Court
cannot but conclude that the applicant was the legal owner of the
disputed land up until the judgment of the Menemen Civil Court and
that he was deprived of his land within the meaning of Article 1 of
Protocol No. 1, pursuant only to section 38 of Law no. 2942.
- In
this connection, the Court notes that according to section 38 of Law
no. 2942, applications for compensation for deprivation of property
had to be made within twenty years of the date the property was
occupied. By applying this provision retrospectively, the national
courts deprived the applicant of any possibility of obtaining
compensation for the annulment of his title deed. The Court observes
at this point that, since the application was lodged with the Court,
section 38 of Law no. 2942 has been annulled by the Constitutional
Court as being unconstitutional. In its judgment dated 10 April
2003, the Constitutional Court held that limiting an individual’s
right to property, by maintaining that the right to bring an action
against the de facto occupation of the disputed property
lapses, and requiring that the property must be transferred to the
authorities twenty years after that occupation, was contrary to the
Constitution. Moreover, referring to the case-law of the Court, it
held that depriving individuals arbitrarily of their right to
property and their right to compensation was contrary to the
principle of the rule of law.
- The
Court takes into consideration the judgment of the Constitutional
Court and acknowledges its reasoning. Nevertheless, it notes that the
judgment of the Constitutional Court did not have retroactive effect
and therefore did not provide the applicant with a procedure capable
of redressing the effects of a possible violation of the Convention.
Consequently, it considers that the matter has not been resolved
within the meaning of Article 37 § 1 (b) of the Convention (see
Börekçioğulları (Çökmez) and
Others, cited above, § 41).
- The
Court considers that the application of Article 38 of Law no. 2942
to the applicant’s case had the consequence of depriving him of
the possibility to obtain damages for the annulment of his title.
Although such an interference was founded on legislation that was
valid at the material time, it could only be described as arbitrary,
in so far as no compensation procedure capable of maintaining the
fair balance which had to be struck between the demands of the
general interest of the community and the requirement of the
protection of the individual’s fundamental rights had been put
in place (see Akıllı v. Turkey, no. 71868/01, §
33, 11 April 2006).
- Accordingly,
the Court concludes that there has been a violation of Article 1 of
Protocol No. 1.
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.”
A. Damage
- The
applicant claimed 6,500,000 euros (EUR) in respect of pecuniary
damage. He did not submit any documents in support of his claim.
- The
Government contested this claim.
- 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.
B. Costs and expenses
- The
applicant did not claim any costs and expenses. Accordingly, no award
is made under this head.
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 six months from
the date of notification of the judgment, 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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
