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SECOND
SECTION
CASE OF EFENDİOĞLU v. TURKEY
(Application
no. 3869/04)
JUDGMENT
STRASBOURG
27 October
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 Efendioğlu v.
Turkey,
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 Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3869/04) 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 Şükrü
Efendioğlu (“the applicant”), on 7 October
2003.
- The
applicant was represented by Mr I. Kahraman, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
6 March 2008 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).
- By
a letter dated 2 July 2009 the applicant's representative informed
the Court that the applicant had died and that his heirs, Ms Emine
Efendioğlu, Mr Ali Rıza Efendioğlu, Mr Abdul Hadi
Efendioğlu, Mr Veysel Efendioğlu, Mr Muzaffer Efendioğlu
and Ms Feyza Efendioğlu wished to pursue his application. The
Government had no comments on this request.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1930 and had been living in Erzurum. On 11 June
2009 he died.
- On
6 April 1989 the applicant bought a plot of land (no. 5784) in
Istanbul. The land was later divided in five parts (plot nos. 13320,
13321, 13322, 13323 and 13324).
- Upon
the Ümraniye Municipality's decision to put a notice in the Land
Registry in 1993, the applicant learned that there was a water
pipeline passing underneath plot no. 13324.
A. The proceedings for annulment of the applicant's
title deed to plot no. 13324
- On
12 April 2000 the Istanbul General Directorate for Water and
Infrastructure (the “ISKI”) filed an action with the
Üsküdar Civil Court of First Instance and requested the
annulment of the title deed of the applicant to the land in question
and its registration in their name. In this respect, they submitted
that they had occupied the disputed plot of land since 1970 by way of
laying down a water pipeline underneath it and that, therefore, it
should be registered under its name pursuant to Article 38 of Law
no. 2942.
- In
the course of the proceedings a commission of experts examined the
documentary evidence and conducted an onsite inspection together with
the court. On 17 July 2001 the experts submitted their report where
they considered, inter alia, that the land in question would
be worth around 305,972,500,000 Turkish liras.
In the annexed document it was noted that plot no. 13324 was de
facto a road.
- On
28 December 2001 the Üsküdar Civil Court of First Instance,
noting that as of 15 November 2001 the Ümraniye Civil Court of
First Instance had become operational, transferred the case to it.
- On
18 June 2002 the Ümraniye Civil Court of First Instance, on the
basis of the evidence, particularly official documents concerning the
construction of the water pipeline, accepted the request of the ISKI
and ordered that the land be registered in their name. It considered,
in particular, that the applicant's property rights over the land in
question had ceased, following the expiry of the statutory time limit
provided under Article 38 of the Law no. 2942.
- The
applicant appealed. Referring to a court case concerning the previous
owner of the plot of land, the applicant submitted, inter alia,
that the water pipeline in question passed through another plot and
not plot no. 13324, and that the statutory time-limit provided
under Article 38 of the Law no. 2942 had not expired since a
notice was put in the Land Registry only in 1993.
- On 10 December 2002 the Court of Cassation upheld the
first instance court's judgment. The applicant's request for
rectification was rejected on 17 March 2003. This decision was served
on him on 8 April 2003.
B. Subsequent developments
- On
10 April 2003 the Constitutional Court annulled Article 38 of
Law no. 2942.
- On
an unspecified date the applicant asked the Ümraniye Civil Court
of First Instance to reopen the proceedings on the ground, inter
alia, that, according to their own investigation there were no
water pipelines passing underneath plot no. 13324 and, consequently,
the court's earlier decision had been based on erroneous official
documents and the false testimony of State officials.
- On
11 December 2003 the Ümraniye Civil Court of First Instance
dismissed the applicant's request on the ground that the applicant
had already made similar claims in the earlier proceedings, that in
the presence of official documents there was no need, in such cases,
to investigate by digging up the disputed land, and that, although
Article 38 of Law no. 2942 had been subsequently annulled by the
Constitutional Court, this was not a reason for reopening the
proceedings.
- The
applicant's appeal and subsequent request for a rectification was
dismissed by the Court of Cassation on 17 May 2004 and 28 September
2004 respectively.
- In
2004 the Ümraniye Magistrates' Court, upon the applicant's
request, conducted an onsite inspection of the land. The appointed
experts considered that the water pipelines in question were not laid
underneath the applicant's plot but next to it.
- In
2008 the Ümraniye Magistrates' Court, upon the ISKI's request,
conducted another inspection of the land. The appointed experts
considered that the water pipelines in question passed next to plot
no. 13324, not underneath it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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. LOCUS STANDI
- The
Court notes that the applicant died on 11 June 2009 and that his
heirs, namely Ms Emine Efendioğlu, Mr Ali Rıza Efendioğlu,
Mr Abdul Hadi Efendioğlu, Mr Veysel Efendioğlu, Mr
Muzaffer Efendioğlu and Ms Feyza Efendioğlu, expressed
their wish to pursue the application. The Government did not contest
the applicant's heirs' standing before the Court. Consequently, the
Court holds that these heirs have standing to continue the present
proceedings in the applicant's stead. However, Mr Şükrü
Efendioğlu will continue to be referred to as the applicant.
II. ADMISSIBILITY
- The
Government asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. In this connection, they
maintained that the applicant had failed to raise the substance of
his complaints before the domestic courts and to ask for compensation
for either de facto expropriation of his land or for its
unlawful occupation. The Government further claimed that the
applicant could have also brought a civil nuisance and abatement
action or an action for tort.
- The
applicant did not specifically respond to the above arguments.
- The
Court reiterates that it has already examined and rejected similar
arguments by the Government in previous cases (see, for example,
I.R.S. and Others v. Turkey, no. 26338/95, §§ 35-36,
20 July 2004, and Börekçioğulları
(Çökmez) v. Turkey (dec.), no. 58650/00,
13 January 2005). The Court finds no particular circumstances in
the present application which would require it to depart from that
conclusion. Consequently, the Court rejects the Government's
preliminary objection.
- Moreover,
the Court finds that the applicant's complaint 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.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that he had been unjustifiably deprived of his
land without payment of compensation in breach of Article 1 of
Protocol No. 1, which reads, in so far as relevant, 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. The parties' submissions
- The
Government maintained that the annulment of the applicant's title
deed and the registration of the land in the name of the ISKI
complied with domestic law and that Article 1 of Protocol No. 1
did not stipulate a right to full compensation under all
circumstances.
- The
applicant submitted that there was no public interest in depriving
him from his property rights without payment of compensation. In this
connection, he pointed out that Article 38 of the Law no. 2942
was subsequently annulled by the Constitutional Court. Moreover, the
applicant noted that he had been deprived of his land without payment
of compensation because of insufficient investigation since it was
clear that no pipeline passed through his land.
B. The Court's assessment
- The
Court refers to the basic principles laid down in its judgments
concerning Article 1 of Protocol No. 1 (see, in particular,
Börekçioğulları (Çökmez)
and Others, §§ 35-37, cited above, and the cases
referred to therein). It will examine the present case in the light
of these principles.
- In
the instant case there is no dispute that the land in question had
been registered in the name of the applicant. The title deed was
transferred to the ISKI by the Ümraniye Civil Court of First
Instance's decision, which was upheld by the Court of Cassation on 10
December 2002. Therefore the decision of the domestic courts clearly
had the effect of depriving the applicant of his property within the
meaning of the second sentence of Article 1 of Protocol No. 1.
The Court must therefore examine whether this interference was
justified under that provision.
- The
Court finds that the Ümraniye Civil Court of First Instance's
decision to register the land in the name of the ISKI was provided
for by law, as it was based on Article 38 of the Law no. 2942, which
came into force on 4 November 1983. In this connection, the
Court takes note that the applicant, by reference to expert reports
drawn up in 2004 and 2008, criticises the manner in which the
domestic courts reached their decision that the ISKI was in
possession of the land in question within the meaning of Article 38
of the Law no. 2942. In the present circumstances, however, the Court
is not required to take a position on this matter since, in any
event, the key issue to be examined is that of proportionality, i.e.
whether a fair balance was struck between the means employed and the
aim sought to be realised.
- In
the instant case, the Court recalls that the applicant's title deed
to the land in question was transferred to the General Directorate
for Water and Infrastructure pursuant to Article 38 of the Law No.
2942, which provides that applications for compensation for the
deprivation of property had to be made within 20 years from 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. In this connection, the Court notes that it 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 by
applying Article 38 of the Law no. 2942 without compensation
being paid (see, for example, İnci (Nasıroğlu) v.
Turkey, no. 69911/01, §§ 24-27, 14 June 2007,
Börekçioğulları (Çökmez)
and Others, §§ 40-43, and I.R.S. and Others,
§§ 50-56, both cited above). 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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the application form the applicant further complained under Article 6
of the Convention and under unspecified provisions of Protocol No.7
about the manner in which the first-instance court determined the
merits of the case. In particular, he considered that the
first-instance court had failed to properly investigate whether the
Water Authorities' pipeline passed underneath his plot of land.
- The Court considers that the applicant's complaints
fall to be examined under Article 6 of the Convention alone.
Moreover, having regard to the facts of the case, the submissions of
the parties and its finding of a violation under Article 1 of
Protocol No. 1 above, the Court considers that it has examined
the main legal question raised in the present application. It
concludes therefore that there is no need to give a separate ruling
on the applicant's remaining complaint under Article 6 (see, for
example, Günaydin Turizm Ve İnşaat Ticaret Anonim
Şirketi v. Turkey, no. 71831/01,
§ 109, 2 June 2009, K.Ö. v. Turkey, no.
71795/01, § 50, 11 December 2007, Mehmet and Suna Yiğit
v. Turkey, no. 52658/99, § 43, 17 July 2007, and
Uzun v.
Turkey, no. 37410/97, § 64, 10 May 2007).
V. 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 899,222 euros (EUR), plus interest running from the
date of lodging of the application, in respect of pecuniary damage,
and EUR 100,000 in respect of non-pecuniary damage. He based his
claim for pecuniary damages on an expert report
prepared by Ms Sevim Ünal, a construction engineer, on 24 June
2008 at the applicant's request for the purposes of the present
proceedings and submitted to the Ümraniye Civil Court of First
Instance.
- The
Government contested the amounts. In particular, they held that the
value of the land was based on fictitious calculations and
assumptions.
- As
regards the applicant's claim for pecuniary damage, in the absence of
documents provided by the Government to support the contrary, the
Court, having regard the documents contained in the case file,
including expert reports, photographs and maps contained in the case
file (see paragraphs 9 and 37 above), the circumstances of the
case and, in particular, to the fact that the land in question had
been and is currently used as a public road, deems it appropriate to
fix a lump sum that would correspond to the applicant's legitimate
expectations. It accordingly awards the applicant's heirs, jointly,
EUR 350,000 under this head.
- As
to the applicant's claim for non-pecuniary damages, the Court finds
that, in the circumstances of the present case, the finding of a
violation constitutes sufficient just satisfaction.
B. Costs and expenses
- The
applicant also claimed EUR 560 for the costs and expenses incurred
both before the domestic courts and the Court. He submitted
documentation in this respect.
- The
Government contested the amount.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the full amount
claimed by the applicant.
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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that there is no need to examine
separately the complaint under Article 6 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant's
heirs, jointly, 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
350,000 (three hundred and fifty thousand euros) in respect of
pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
560 (five hundred and sixty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant's heirs;
(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 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
