Arıoğlu and Others v. Turkey (dec.)

Information Note on the Court’s case-law No. 157

November 2012

Arıoğlu and Others v. Turkey (dec.) - 11166/05

Decision 6.11.2012 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Claims in respect of expropriated land for compensation under Article 1007 of Civil Code or for restitution under Law of 18 April 2012: effective remedies

Facts – In 1990 a plot of land that had formerly been part of the public forest estate was entered in the land register under the applicants’ names. In 2001 the Treasury brought proceedings seeking to have the applicants’ title to the land annulled. In 2002 the courts allowed the Treasury’s claim, in accordance with section 2(B) of the Forestry Act, finding that new studies had shown that when it ceased to be classified as forest land the land should have been transferred to the Treasury and not to the applicants. Before the European Court, the applicants alleged that the loss of their property rights without payment of compensation had breached their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1. The Government contended that the complaint was inadmissible as the applicants had not exhausted the available domestic remedies.

Law – Article 35 § 1: The fact that almost forty judgments had been delivered on this subject and that hundreds of cases were still pending before the Court demonstrated that the annulment of duly established title to property without compensation constituted a structural problem. Following the Court’s judgments, the Turkish Court of Cassation, in late 2009, had reversed its case-law regarding the application of Article 1007 of the Civil Code, thereby providing for compensation for individuals who had been deprived of property forming part of the forest estate on the basis of that provision. The Court of Cassation had confirmed this approach in several subsequent judgments. Furthermore, following a separate development in the case-law, persons who had lost the title to their property on the grounds that it formed part of the forest estate could now lodge a claim for compensation equal to the actual value of the property, within ten years starting from the date on which the judgment depriving them of the property became final. The National Assembly had also enacted legislation on 18 April 2012 providing for the restitution of land to former owners whose title had been annulled under section 2(B) of the Forestry Act. As to the effectiveness of the remedies in question, the remedy relating to Article 1007 of the Civil Code was now in regular use and the domestic courts frequently applied the above-mentioned provision while referring to Article 1 of Protocol No. 1 to the Convention and the Court’s case-law. Hence, this line of case-law could henceforth be said to be well established. Furthermore, under the legislation of 18 April 2012, there was no obstacle preventing the applicants from requesting the restitution of their land within two years from its entry into force. The Law in question also made provision in certain exceptional situations for compensation equivalent to the market value, or a plot of land of equivalent value, to be offered in exchange for the land transferred to the Treasury.

Thus, as matters stood, a claim for compensation under Article 1007 of the Civil Code, which had given rise to the reversal in the case-law by the Court of Cassation in late 2009, and the possibility of restitution under the Law of 18 April 2012, had acquired a degree of legal certainty such that they could and should be exercised for the purposes of Article 35 § 1 of the Convention. In the light of the foregoing, the applicants should have made use of at least one of the remedies now available, in accordance with the new legislation and the new case-law of the Court of Cassation referred to above. No exceptional circumstances existed capable of dispensing the applicants from their obligation to exhaust those remedies.

Conclusion: inadmissible (failure to exhaust domestic remedies).

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This summary by the Registry does not bind the Court.

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