Information Note on the Court’s case-law No. 151
April 2012
Altunay v. Turkey (dec.) - 42936/07
Decision 17.4.2012 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Change in case-law enabling persons deprived of title to forestry commission land to seek compensation: inadmissible
Facts – In 1999 a plot of land classified as agricultural land was entered in the land register in the applicant’s name. However, in 2004 the Forestry Commission brought judicial proceedings to have the applicant’s document of title to the land in question declared void on the ground that the land had been part of the public forest estate at the time of its registration. At final instance, in a judgment of 27 March 2007, the Court of Cassation upheld the ruling of the first-instance court, which had declared the applicant’s document of title void and had ordered the registration of the land as State forest belonging to the Treasury.
Law – Article 35 § 1: The fact that some forty judgments had been delivered on this subject since the Turgut and Others* judgment indicated that the invalidation, without compensation, of documents of title issued in due form was a systemic problem. Moreover, hundreds of cases concerning the same issue were still pending before the Court.
An examination of the domestic legislation and case-law revealed that a compensatory remedy was available to persons who had been deprived of property forming part of the public forest estate. Following the Court’s judgments on the subject, in November 2009 the Court of Cassation had reversed its position on the application of Article 1007 of the Civil Code, thus allowing compensation to be paid to those who had been deprived of such property. The Court of Cassation had confirmed that approach in several subsequent judgments. It had later adopted a position on the time-limit for bringing a compensation claim and the method for calculating the amount to be awarded. Thus, a claim for compensation corresponding to the real value of the property could be brought within ten years from the date on which the judgment declaring the document of title void had become final. This remedy was now regularly used. Accordingly, the claim for compensation had by now acquired a sufficient degree of legal certainty to enable and oblige applicants to use it for the purposes of Article 35 § 1.
It remained to be determined whether the applicant, whose document of title had been declared void in a judgment which had become final on 27 March 2007, could take advantage of this change of approach to claim compensation, given that the assessment of whether domestic remedies had been exhausted was normally carried out with reference to the date on which the application was lodged with the Court. However, that rule was subject to exceptions. In the present case, it was appropriate to depart from the general principle in view of the large number of similar applications pending before the Court that ran the risk of overburdening it and hence weakening the protection mechanism set up by the Convention. Accordingly, the applicant could bring a claim for compensation within ten years from 27 March 2007.
In the light of these considerations, the Court held that Article 35 § 1 required the applicant to apply to the appropriate domestic courts within ten years from 27 March 2007 in order to claim compensation for the damage he had suffered as a result of the annulment of his title to the property.
Conclusion: inadmissible (non-exhaustion of domestic remedies).
* Turgut and Others v. Turkey, no. 1411/03, 8 July 2008, Information Note no. 110
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