Communicated on 2 October 2017
SECOND SECTION
Application no. 51348/07
Moşe Murat AZIKRI and Ira BEHAR
against Turkey
lodged on 7 November 2007
SUBJECT MATTER OF THE CASE
The applicants purchased a flat from a person who produced a notarised power of attorney attesting that he had authority to sell the property in question on behalf of its lawful owner, Mr I.G.K. The sales transaction between the applicants and the representative was concluded on the basis of the power of attorney before the land registry of İzmir and the applicants were given a title deed. Approximately nine months after the applicants moved in, Mr I.G.K. visited the flat and found out to his surprise about the above transaction. He told the applicants that he had never authorised anyone to sell his flat. Realising that they had been victims of fraud, the applicants and Mr I.G.K. lodged a complaint with a public prosecutor to identify the perpetrators. In the meantime Mr I.G.K. brought civil proceedings against the applicants and successfully reclaimed his flat.
Relying on Article 917 of the former Civil Code, which provides for the State’s strict liability for keeping land registry records accurate, the applicants then brought civil proceedings against the State and requested compensation for their losses, including the market value of the flat as well as the expenses they had incurred for renovations. Their claims were dismissed on the ground that the causal link between the land registry’s action and the losses suffered by the applicants had been disrupted by the fraudulent acts committed by private third parties without the involvement of State authorities and that therefore the State could not be held responsible.
According to the applicants, no progress has been made in respect of their complaint to the public prosecutor.
The applicants complain under Article 1 of Protocol No. 1 to the Convention that the State failed to fulfil its positive obligation to protect the applicants’ proprietary interests by failing to verify the authenticity of the power of attorney in question and the legitimacy of the information it contained. Under the same provision, the applicants maintain that dismissal of their compensation claim by the domestic courts imposed a disproportionate burden on them. They further complain under Article 6 § 1 of the Convention that the interpretation given to Article 917 of the former Civil Code by the Court of Cassation in the impugned proceedings was diametrically opposite to its long standing case-law concerning the scope of State’s strict liability in cases involving fraud committed by third parties where bona fide purchaser’s entitlement to compensation had been recognised.
QUESTIONS tO THE PARTIES
1. Has there been a failure on behalf of authorities to put in place safeguards to protect bona fide parties from fraudulent activities of third parties in respect of real-estate transactions before the land registry? In that connection:
(i) How does the land registry verify the authenticity of documents produced by the parties?
(ii) What is the scope of review of the land registry concerning the use of notarised documents in real-estate transactions?
(iii) Is there a mechanism in place that ensures cooperation between land registries and notaries to prevent fraud?
The Government are requested to submit information concerning the legislative and administrative framework for the protection against fraud and to comment on whether at the material time it was being effectively implemented.
2. Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? If so, was that deprivation necessary to control the use of property in accordance with the general interest?
In particular, did that deprivation impose an excessive individual burden on the applicants bearing in mind that their entitlement to compensation was not recognized in the impugned proceedings (see, mutadis mutandis, Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011)?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular, was the principle of legal certainty implicit in this provision, respected by the Court of Cassation, which, according to the applicants, gave a different interpretation that was inconsistent with its long standing case-law concerning the scope of State liability with respect to the use of forged documents by third parties in real estate transactions before the land registry? In particular, are there “profound and long-standing differences” in the case law of the Court of Cassation on that issue? If there are such differences, does the domestic law provide for machinery for overcoming case-law inconsistencies, and if so, has that machinery been applied and to what effect (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49-58, 20 October 2011, and Emel Boyraz v. Turkey, no. 61960/08, § 74-75, 2 December 2014)?
The parties are requested to supply information with respect to the interpretation and application of Article 917 of the former Civil Code and Article 1007 of the new Civil Code with respect to similar situations.
Full & Egal Universal Law Academy