[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF GÜMÜŞOĞLU AND OTHERS v. TURKEY
(Applications
nos. 40/02, 41/02 and 42/02)
JUDGMENT
STRASBOURG
18
March 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 Gümüşoğlu and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Rıza Türmen,
Danutė
Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 26 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 40/02, 41/02 and 42/02)
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 three Turkish nationals,
Mr Tevfik Gümüşoğlu, Mr Hasan Süslü
and Mr Münip Uslu (“the applicants”), on 7 November
2001.
- The
applicants were represented by Mr Z. Işık, a lawyer
practising in Hatay. The Turkish Government (“the Government”)
were represented by their Agent.
- On
17 November 2006 the Court decided to give notice of the applications
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1955, 1935 and 1950 respectively and live in
Hatay.
- On
various dates, the applicants bought plots of land (nos. 1233,
1230 and 1162 respectively) near the coast in Hatay. They each built
a house there.
- In
1995 the Treasury filed an action before the Samandağ Court of
First Instance, requesting the annulment of the applicants' title
deeds to the land on the ground that they were located within the
coastline.
- On
16 December 1999 (nos. 40/02 and 41/02) and 9 December 1999
(42/02), the Samandağ Court of First Instance, relying,
particularly, on expert reports, upheld the request of the Treasury
and annulled the title deeds of the applicants to the plots of land.
In its decisions, the court held that, pursuant to domestic law,
coasts could not be subject to private ownership and that, therefore,
the applicants could not rely on the argument that they had acted
bona fides or on the fact that they had constructed buildings
on the site.
- On
various dates the applicants appealed. In their petitions they
submitted, inter alia, that the right to property - a human
rights norm - was protected under the constitution and the domestic
law, and that the domestic courts had deprived them of their property
rights without proper examination and without a payment of
compensation. On 3 October 2000 their appeals were dismissed by
the Court of Cassation.
- On
various dates the applicants requested the Court of Cassation to
rectify its decision. The Court of Cassation dismissed the
applicants' requests on 2 May 2001 (nos. 40/02 and 42/02) and
19 April 2001 (no. 41/02). These decisions were served on
the applicants on 6 June 2001 (nos. 40/02 and 42/02) and 23 May
2001 (no. 41/02).
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
- In
view of the similarity of the three applications, the Court finds it
appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that the authorities had deprived them of their
property without payment of compensation, in violation of Article 1
of Protocol No. 1, which, insofar 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 applicants had not
exhausted domestic remedies, as required by Article 35 § 1 of
the Convention, as they had failed to make proper use of the
administrative and civil law remedies available to them in domestic
law. They further maintained that the applicants had failed to raise
the substance of their complaints before the domestic courts.
- The applicants contested the Government's arguments.
- The
Court notes, firstly, that the applicants did raise the substance of
their complaints before the domestic courts (see paragraph 8 above).
Secondly, the Court notes that it has already examined and rejected,
in previous cases, the Government's remaining objections on
non-exhaustion of domestic remedies (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). The Court finds no particular circumstances in
the instant cases which would require it to depart from its findings
in the above mentioned applications. It therefore rejects the
Government's objections under this head.
- The
Court further notes that the applications are not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
Government maintained, in particular, that, according to the
Constitution, coastlines belong to the State and can never become
private property. They argued that the applicants should have been
aware that the use of property in a shore area owned by the State
could not lead to ownership. Therefore, the entries in the
applicants' name in the land registry were contrary to the
Constitution and the laws applying at the material time, and the
illegal transactions were corrected by the Samandağ Civil Court
of First Instance.
- The
applicants maintained their 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 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 cases.
Accordingly,
it finds that there has been a violation of Article 1 of Protocol
No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants also complained that the domestic court decisions were
unfair, biased, insufficiently motivated and against the provisions
of both domestic and international law, in breach of Article 6 of the
Convention.
- The
Government contested these arguments.
- However,
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
1. Pecuniary damage
- The
applicants claimed different amounts in respect of their pecuniary
damage for the loss of their property. Mr Gümüşoğlu
requested 50,619 US dollars [USD] (approximately 37,390 euros [EUR]).
Mr Süslü requested USD 49,852 (approximately EUR 36,815)
and Mr Uslu requested USD 58,111 (approximately EUR 42,915). Their
claims were based on the amounts determined in expert reports,
prepared upon the applicants' request and filed with the Samandağ
Civil Court of First Instance. The reports were drafted following an
on-site inspection which took place on 2 October 2001
(nos. 40/02 and 42/02) and 20 June 2002 (no. 41/02). The
applicants pointed out that the above-mentioned amounts were
considerably less than the real amount of pecuniary damage they had
sustained over the years.
- The
Government contested the amounts.
- The Court reiterates that when the basis of the
violation found is the lack of compensation, rather than any inherent
illegality in the taking of the property, the compensation need not
necessarily reflect the property's full value (see 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 which would correspond to an
applicant's legitimate expectations for compensation (see, for
example, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§§ 254 259, ECHR 2006 ..., Stornaiuolo
v. Italy, no. 52980/99, §§
82 91, 8 August 2006, and Doğrusöz and
Aslan, cited above, § 36).
- In
the light of these elements and deciding on an equitable basis, the
Court awards the first applicant, Mr Gümüşoğlu,
EUR 29,000, the second applicant, Mr Süslü, EUR 28,000,
and the third applicant, Mr Uslu, EUR 33,000 for their pecuniary
damage.
2. Non-pecuniary damage
- The
applicants each requested USD 15,000 (approximately EUR 11,080)
in non pecuniary damage.
- The
Government contested the amount.
- The
Court finds that, in the circumstances of the present cases, the
finding of a violation constitutes sufficient just satisfaction (see,
for example, Doğrusöz and Aslan, cited above, §
38, and Adil Özdemir v. Turkey, no. 36531/02,
§ 42, 10 May 2007).
B. Costs and expenses
- The
applicants also claimed various amounts in respect of costs and
expenses incurred both before the domestic courts and the Court.
Mr Gümüşoğlu claimed, in total, 788,234 new
Turkish liras [YTL] (approximately EUR 437), Mr Süslü
requested, in total, YTL 795,754 (approximately EUR 441) and Mr Uslu
claimed, in total, YTL 737,254 (approximately EUR 409). The
applicants submitted documentation, such as receipts, in support of
some of their claims.
- The
Government contested the amounts.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicants, jointly, EUR 1,200
to cover their costs under all heads.
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
- Decides to join the applications;
- Declares the complaint under Article 1 of
Protocol No.1 admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No.1 to the Convention;
- Holds that the finding of a violation
constitutes sufficient just satisfaction for any non pecuniary
damage suffered by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants, 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 the national currency of the respondent State at
the date of settlement:
(i) EUR
29,000 (twenty-nine thousand euros) to Mr Gümüşoğlu,
EUR 28,000 (twenty-eight thousand euros) to Mr Süslü
and EUR 33,000 (thirty-three thousand euros) to Mr Uslu for
pecuniary damage;
(ii) EUR
1,200 (one thousand two hundred euros), jointly, in respect of costs
and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
