Communicated on 15 May 2018
SECOND SECTION
Application no. 45102/04
Doğan BİLGİNOĞLU
against Turkey
lodged on 20 September 2004
STATEMENT OF FACTS
The applicant, Mr Doğan Bilginoğlu, is a Turkish national who was born in 1934 and lives in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
B. Compensation proceedings
The applicant is the owner of a plot of land measuring 21,650.45 square metres (plot no. 473) on the island of Bozcaada, in Çanakkale. The property included a small “vineyard house” and the ruins of a barn.
On 23 November 1991 the land was officially designated as a grade three nature conservation area (üçüncü derece doğal sit alanı) by the Bursa Regional Committee of Ancient Buildings and Monuments.
On an unspecified date the applicant learned that third parties had exploded dynamite on his land with a view to quarrying stone and in the course of this activity the vineyard house and the barn had been destroyed. According to the information the applicant received, the third parties had been exploiting his land for materials such as stone.
On 15 March 1996 the applicant brought an action for compensation against the General Directorate of National Roads and Highways (“the Directorate”), the company G. İnş. Tic. Ltd. Şti., and F.G. before the Bozcaada Civil Court of General Jurisdiction, claiming 1,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and a further TRL 1,000,000,000 in respect of non-pecuniary damage. He submitted, inter alia, that the defendants had trespassed on his property and had repeatedly removed quantities of stone, as a result of which he had been deprived of his land and the land had lost a substantial amount of its value. The applicant alleged that the Directorate had allowed the other party to quarry stone on his land unlawfully. Finally, the applicant requested that the domestic court determine the type, amount and value of the stone taken from his land, as well as the overall value of the house and barn together with the loss in value of his land.
On 25 October 1996 the applicant filed an action with the Bozcaada Civil Court of General Jurisdiction seeking TRL 20,000,000,000 in additional compensation.
On 27 March 1997 the first-instance court dismissed in its entirety the applicant’s claim against G. İns. Tic. Ltd. Şti. and F.G. and partially allowed his claim against the Directorate. It awarded the applicant TRL 166,448,525 in respect of pecuniary damage.
On 22 October 1997 the applicant appealed against this judgment.
On 3 March 1998 the Court of Cassation quashed the judgment of the first-instance court. Confirming that the facts were established, it stated that G. İnş. Tic. Ltd. Şti. should have been held liable as well, since the Directorate had suggested the land in question to this company, and it had subsequently quarried stone from that land. It also held that the lower court should have obtained an expert report for the purpose of determining the quantity and the quality of the stone, together with an assessment of the loss in value of the land as a result of the quarrying.
On 28 March 2001 the Bozcaada court partially allowed the claim against the Directorate and G. İnş. Tic. Ltd. Şti. and dismissed the claim against F.G. It awarded the applicant TRL 410,955,000 in respect of pecuniary damage.
On 26 June 2001 the applicant appealed against the first-instance judgment.
On 20 November 2001 the Court of Cassation quashed the first-instance court’s judgment, finding that the claim concerning the loss in value of the land had been dismissed wrongfully. The Court of Cassation held that it should be accepted that it was natural that the land had lost some of its value as a result of the extraction of materials found thereon. It asked the first‑instance court to obtain an expert report to determine the extent of the loss.
On 19 April 2006 the Bozcaada Civil Court of General Jurisdiction, having obtained the necessary expert reports and conducted an onsite inspection of the land, dismissed in its entirety the applicant’s claim against F.G. and partially allowed his claim against G. İns. Tic. Ltd. Şti. and the Directorate. It awarded the applicant 6,028,33 Turkish liras (TRY[1]) plus statutory interest with effect from the date of introduction of his case − namely 15 March 1996 − in respect of pecuniary damage.
In a judgment of 7 November 2006 the Court of Cassation upheld the judgment given by the first-instance court and awarded the applicant compensation plus interest at the rate of 30% per annum (statutory interest) from the date of the first interference with his possession, namely 29 November 1995.
The applicant’s subsequent request for rectification was rejected on 2 April 2007.
On 16 April 2009, the applicant obtained TRY 35,191.80 by way of compensation.
C. Criminal proceedings
On 24 May 1996 the applicant lodged a criminal complaint against a person or persons unknown who had quarried stone from his land.
On 5 July 1996 the public prosecutor at the Bozcaada prosecutor’s office filed an indictment and charged five people with theft.
On 20 March 2001 the Bozcaada Magistrates’ Court decided that, pursuant to section 1(4) of Law no. 4616, the criminal proceedings should be suspended and subsequently discontinued if no further offence of the same or a more serious kind was committed by the offenders within a five‑year period.
On 15 April 1998, having discovered traces of fresh activity on his land, the applicant lodged another criminal complaint against a person or persons unknown for theft. On 15 June 1998 Bozcaada prosecutor’s office issued a decision not to prosecute in respect of this complaint.
On 3 July 2003 the applicant lodged another criminal complaint against a person or persons unknown after observing that his land had been littered with garbage. On 1 June 2004 the Bozcaada prosecutor’s office filed an indictment and charged three people with breaching Law no. 2863 on the Cultural and Natural Heritage (Protection) Act. According to information provided by the applicant, the proceedings were pending at the time of the application.
Lastly, on 19 March 2003 the applicant realised once again that stone had been unlawfully removed from his land and subsequently lodged another criminal complaint against a person or persons unknown for theft. On 18 April 2003 the Bozcaada prosecutor’s office filed an indictment and charged two people with theft.
On 4 November 2004 the Bozcaada Magistrates’ Court acquitted the accused, holding that the elements of the crime of theft were lacking.
COMPLAINTS
The applicant complains under Article 1 of Protocol No.1 of the Convention that:
a) the ongoing interference is lacking in any legal basis since the authorities have neither expropriated his land nor obtained the necessary permits to quarry stone from it,
b) it has been impossible for him to prevent the interference through the legal remedies,
c) the amount of compensation awarded by the domestic courts was manifestly wrongly calculated and was substantially too low,
d) the aforementioned compensation had lost its value due to the excessive length of the proceedings and inflation.
QUESTIONS TO THE PARTIES
1. Did the applicant have at his disposal an effective domestic remedy whereby he could have his complaint concerning the alleged unlawfulness of the operation of a quarry on his land examined?
If so, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in relation to that complaint?
In particular, were criminal complaints and/or a civil action for damages effective remedies within the meaning of this provision in respect of the applicant’s complaint under Article 1 of Protocol No. 1?
2. Given the domestic courts’ finding that the General Directorate of National Roads and Highways and G. İns. Tic. Ltd. Şti. were responsible for the damage to the applicant’s property, has there been an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? Was the interference in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
In the event that the interference with the applicant’s land is ongoing, have the State authorities acted in accordance with their positive obligations under Article 1 of Protocol No. 1 to the Convention? In particular, have they taken the necessary steps to guarantee and protect the applicant’s right of ownership on the disputed land?
The Government are invited to provide information as regards the current situation of the applicant’s land and on how long the operation carried out by third parties on that property continued.
3. In the light of the Court’s case-law, established in Akkuş v. Turkey (judgment of 9 July 1997, Reports 97-IV, No. 43, p. 1300) and Aka v. Turkey (judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI), can the Government be considered to have fulfilled their obligation to respect the applicant’s right to the protection of his property, under Article 1 of Protocol No. 1 to the Convention?
[1]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.
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