CASE OF BİLGİNOĞLU v. TURKEY

SECOND SECTION

CASE OF BİLGİNOĞLU v. TURKEY

(Application no. 45102/04)

JUDGMENT
 

STRASBOURG

3 December 2019

This judgment is final but it may be subject to editorial revision.

In the case of Bilginoğlu v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 12 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 45102/04) 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 Doğan Bilginoğlu (“the applicant”), on 20 September 2004.

2.  The applicant was represented by Mr Ü. Kılınç, a lawyer practising in Strasbourg. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 15 May 2018 the Government were given notice of the complaints concerning the interference with the applicant’s property and the loss of value of the compensation awarded to him, as well as that concerning the domestic authorities’ compliance with their positive obligations. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1934 and lives in Istanbul.Background to the case

5.  The applicant is the owner of a plot of land in the island of Bozcaada, which in whole was designated as a grade three nature conservation area.

6.  In 1995 the General Directorate of National Roads and Highways (“the Directorate”) awarded a tender to Güven İnşaat Ltd. Company (“the Company”) and a certain F.G. for the improvement of the roads in Bozcaada. In line with the contact between those parties, the Company and F.G. were given permission to quarry stone from the Municipality’s mine. However, during the construction works, on an unspecified date in October 1995, a certain amount of stone was removed from the applicant’s property, which was located nearby.

7.  After having learned that third parties had exploded dynamite on his land and quarried stone, the applicant lodged two actions before the civil courts and made a number of criminal complaints before the Bozcaada Public Prosecutor.

8.  By a letter dated 26 July 1996 the District Governor informed the General Directorate for the Protection of Cultural and Natural Heritage that that on 1 November 1995 he had taken the necessary measures and put an end to the interference, which had taken place by mistake. In the meantime, upon a request of the District Governor, two officers issued a report, establishing that there was no activity on the applicant’s property.Compensation proceedings

9.  On 15 March 1996 the applicant brought an action for compensation against the Directorate, the Company, and F.G. before the Bozcaada Civil Court of General Jurisdiction, claiming 1,000,000,000 former Turkish liras (TRL) in respect of pecuniary damage and a further TRL 1,000,000,000 in respect of non-pecuniary damage, together with interest calculated on the basis of the rediscount rate. He submitted that the defendants had repeatedly removed quantities of stone from his land, as a result of which the land had lost a substantial amount of its value and the vineyard house had been demolished. He requested that the domestic court determined the value of the stone taken from his land, as well as the loss in value of his land.

10.  On 25 October 1996 the applicant lodged another action with the Bozcaada Civil Court, seeking TRL 20,000,000,000 in compensation. The two cases were joined.

11.  On 27 March 1997 the Bozcaada Civil Court dismissed the applicant’s claim against the Company and F.G and partially allowed his claim against the Directorate. The court awarded the applicant TRL 166,448,525 in respect of pecuniary damage, corresponding to the value of the stone taken from his land.

12.  On 3 March 1998 the Court of Cassation quashed the judgment of the first-instance court, holding that the Company should have been held liable as well. It also held that the lower court should have obtained an expert report in order to determine the quality of the stone and to assess the loss in the value of the land.

13.  On 28 March 2001, after having examined expert reports determining the quality and value of the stone quarried from the land, the Bozcaada Civil Court partially allowed the claim against the Directorate and awarded the applicant TRL 410,955,000 in respect of pecuniary damage. The court dismissed the claim regarding the loss in value of the land.

14.  On 20 November 2001 the Court of Cassation once again quashed the first-instance court’s judgment, finding that the land had indeed lost part of its value and that the first-instance court should obtain an expert report to determine the extent of that loss.

15.  On 19 April 2006 the Bozcaada Civil Court awarded the applicant 6,028 Turkish liras (TRY) plus statutory interest with effect from the date of introduction of the case, in respect of pecuniary damage for the value of the stone, the vineyard house, and the loss in value of the land.

16.  By a decision of 7 November 2006 the Court of Cassation upheld that judgment with an amendment and awarded the applicant compensation plus statutory interest from the date of the first interference with his possession, which it determined as 29 November 1995. The appellate court rejected the applicant’s subsequent request for rectification on 2 April 2007.

17.  On 16 April 2009 the applicant was paid TRY 35,191 in compensation. On 4 May and 2 December 2009, he was paid an additional TRY 1,408 and TRY 1,477, respectively.Criminal proceedings

18.  On 24 May 1996 the applicant lodged a criminal complaint against persons unknown, who had allegedly quarried stone from his land. On 5 July 1996 the Bozcaada Public Prosecutor filed an indictment with the Bozcaada Magistrates’ Court, charging five people with theft. On 20 March 2001 the Bozcaada Magistrates’ Court decided that the criminal proceedings should be suspended and subsequently discontinued on the condition that no further offence of the same or a more serious kind was committed by the offenders within a five-year period. By a decision of 30 April 2007 the Magistrates’ Court discontinued the proceedings.

19.  On 15 April 1998, after having discovered traces of fresh activity on his land, the applicant lodged another criminal complaint. On 15 June 1998 Bozcaada Public Prosecutor issued a decision not to prosecute, as those responsible of the traces could not be determined.

20.  On 19 March 2003 the applicant realised once again that stone had been removed from his land and lodged another criminal complaint. On 18 April 2003 the Public Prosecutor 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 had not been established. That judgment became final on 11 November 2008.

21.  Lastly, on 4 July 2003 the applicant lodged another complaint, this time after observing that his land had been littered with garbage. On 1 June 2004 the Bozcaada Public Prosecutor issued an indictment and charged three people with breaching Law no. 2863 on the Protection of Cultural and Natural Heritage. On 21 July 2005 the Ҫanakkale Assize Court acquitted two of the accused. By a judgment of 26 January 2010, which became final on 1 April 2010, the Assize Court sentenced the other accused to ten months’ imprisonment and decided to suspend the pronouncement of the judgment.

THE LAWALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

22.  The applicant complained that his right to property had been violated on account of the unlawful interference with his property, the amount of compensation awarded to him and its depreciation, and the domestic authorities’ failure to prevent the ongoing interference. He relied on Article 1 of Protocol No. 1 to the Convention, which reads 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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

23.  The Government contested that argument.AdmissibilityThe parties’ submissions

24.  The Government argued that the applicant had failed to exhaust domestic remedies for all of his complaints under Article 1 of Protocol No. 1 to the Convention. They submitted firstly that the applicant should have used the remedy under Law no. 3091 on the Prevention of Unlawful Interference with Immovable Property, which provided him with an opportunity to obtain the prevention of the interference with his property by filing an application with the District Governor or the Governor.

As for the interference with the applicant’s property after 1995 and the domestic authorities’ alleged failure to act in accordance with their positive obligations, they stated that the applicant had failed to lodge a compensation claim before the domestic courts.

As regards the applicant’s complaint concerning the loss in value of the compensation awarded to him, the Government alleged that the applicant should have lodged a compensation claim for additional damage under Article 105 of the Code of Obligations in force at the time (Law no. 818). Referring, in particular, to the Court’s decisions in the cases of Kat İnşaat Ticaret Kollektif Şirketi/İsmet Kamış ve Ortakları v. Turkey ((dec.), no. 74495/01, 31 January 2006) and Balkar Baltutan and ANO İnşaat ve Ticaret Limited Şirketi v. Turkey ((dec.), no. 9522/03, 7 October 2008), they claimed that the present case bore great similarity to those cases, where the Court had found that the applicants had failed to comply with the exhaustion requirement as they had not made use of the remedy available under Article 105 of the Code of Obligations.

25.  The Government contended, in the alternative, that the application was incompatible ratione personae with Article 1 of Protocol No. 1 to the Convention, as the applicant could no longer claim to be a victim of a violation of his right to property on account of the compensation awarded to him for the impugned interference, namely, the removal of stone in 1995.

26.  The applicant argued that the remedy available under Law no. 3091 was purely administrative and that he had not been required to have recourse to it as he had already lodged a compensation action for the interference with his property. As regards the State’s positive obligation to prevent the ongoing interference, he claimed that in view of the authorities’ failure to take the necessary steps despite his complaints and to carry out the criminal proceedings in a prompt manner, he could not be expected to lodge a compensation claim, as such a remedy would be futile. In that connection, he also stated that as he had not known the persons responsible of the damage caused to his property, he could not lodge a compensation claim against them in the absence of a decision by the Magistrates’ Court establishing their responsibility.

27.  As for the remedy under Article 105 of the former Code of Obligations, the applicant noted that the facts of the cases cited by the Government differed from his, and that the Court had already established in numerous cases that that recourse did not constitute an effective remedy for complaints concerning monetary depreciation of debts due by the State.

28.  Lastly, stating that an applicant’s victim status may depend on the level of compensation awarded at domestic level, he argued that the Government’s objection regarding incompatibility ratione personae should be rejected as he had not received adequate compensation due to the depreciation of the amount awarded.The Court’s assessment

(a)   As regards the positive obligation of the public authorities

29.  In so far as the applicant complained about the interference that had occurred after 1995 and the authorities’ failure to act in accordance with their positive obligation to prevent them, the Court agrees with the Government that the applicant had failed to exhaust the available domestic remedies pertinent to that complaint. It notes that the compensation proceedings initiated by the applicant against the Directorate and the Company solely pertained to the instantaneous interference which had occurred in 1995. During the course of the proceedings before the Bozcaada Civil Court, in particular, the period between 1996 and 2003, the applicant lodged four criminal complaints, as a result of which the Bozcaada Public Prosecutor filed three indictments, accusing certain people of theft or breaching the relevant law. The Court observes that during that period, where the applicant noticed several times that his land had been littered and used for quarrying stone, he only filed complaints before the Public Prosecutor, while it was open to him to institute administrative proceedings for compensation against the relevant public authorities, or civil proceedings against the persons indicated by the Public Prosecutor. The Court notes in that connection that the effectiveness of those remedies did not depend on the outcome of the criminal proceedings (see, mutatis mutandis, Kurşun v. Turkey, no. 22677/10, § 131, 30 October 2018).

30.  In view of the above, the Court considers that the applicant did not pursue all available remedies relevant to his complaint concerning the failure of the State authorities to take the necessary measures to protect his right to property from the interference that had taken place after 1995. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

(b)   As regards the interference in 1995

31.  The Court notes firstly that the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Akdıvar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Lagutin and Others v. Russia, nos. 6228/09 and 4 others, § 75, 24 April 2014). The Court considers accordingly that the applicant was not obliged to have recourse to the remedy provided by Law no. 3091 in order to prevent the interference which occurred in 1995, as he had already initiated compensation proceedings, which prove to be the effective remedy regarding his complaint. In that connection it notes that, in the circumstances of the present case, the remedy under Law no. 3091 was unlikely to be as successful as the civil-law remedy, given that it did not provide appropriate civil redress such as compensation, and as the District Governor had already taken the necessary steps to prevent further damage to the stone quarry in 1995 (see paragraph 8 above). Consequently, the Court dismisses the Government’s objection under this head.

32.  As to the Government’s objection concerning the non-exhaustion of domestic remedies on account of the applicant’s failure to use the remedy provided under Article 105 of the Code of Obligations, the Court observes firstly that the cases relied on by the Government in support of their objection (see paragraph 24 above) differed from the present case. It notes that it dismissed similar arguments in previous cases (see Aka v. Turkey, 23 September 1998, §§ 34‑7, Reports of Judgments and Decisions 1998‑VI, and Sait Işık v. Turkey, no. 19255/02, § 15, 10 March 2009) and sees no reason to conclude otherwise in the present case. The Court therefore rejects the Government’s objection.

33.  In so far as the Government argued that the applicant could no longer be considered a victim on account of the payment made to him, the Court considers that the Government’s objection is closely linked to the merits of the applicant’s complaints and joins it to the merits of the case.

34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

35.  The applicant complained under Article 1 of Protocol No.1 of the Convention about the interference with his property and the loss in value of the amount of compensation awarded by the domestic courts due to the excessive length of the proceedings and inflation.

36.  The Government argued that the impugned interference with the applicant’s property by the public authorities was in the public interest and did not impose an excessive burden on him, as it had been made erroneously and for a short period of time, and had been discontinued immediately. They also argued that the pecuniary damages sustained by the applicant due to that interference had been compensated. In so far as the applicant’s complaint pertained to the depreciation of the compensation amount on account of the length of the proceedings and the high rates of inflation, the Government noted that they were aware of the principles set out by the Court in its judgment in the case of Aka (cited above).

37.  The Court reiterates that it has already found a violation of Article 1 of Protocol No. 1 in a number of applications that raise similar issues to those that arise in the present case (see, among many others, Aka, cited above, and Zeytinli v. Turkey, no. 42952/04, § 16, 26 January 2010).

38.  Having regard to the economic data for the period between the years 1995 and 2009, in particular the fact that the statutory interest rate applied during that period varied between 9% and 60%, whereas the actual inflation rate varied between 6,5% and 99,1%, the Court finds in the present case that the difference between the statutory interest rates applied to the compensation amount and the actual inflation rates caused the applicant to sustain financial loss. Consequently, the applicant had to bear an individual burden that has upset the fair balance which must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.

39.  In the light of the foregoing, the Court rejects the Government’s objection to the applicant’s victim status (see paragraph 25 above) and finds that there has been a breach of Article 1 of Protocol No. 1 to the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”Damage

41.  The applicant claimed 845,000 euros (EUR) in respect of pecuniary damage and EUR 400,000 in respect of non-pecuniary damage.

42.  The Government contested these claims, finding them unsubstantiated and excessive.

43.  Using the same method of calculation as in the Aka judgment (cited above, §§ 53-7) and having regard to the relevant economic data, the Court awards the applicant EUR 128,000 in respect of pecuniary damage.

44.  The Court further considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Baskın v. Turkey, no. 9125/04, § 53, 8 February 2011).Costs and expenses

45.  The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. In support of his claim he submitted two contracts made with his lawyer, according to which he would pay EUR 3,000 as well as 5% of any compensation awarded by the Court, for his representation during the proceedings before the Court.

46.  The Government contested that claim, arguing that it was not substantiated as the contracts between the applicant and his lawyer did not prove that such payment had been made.

47.  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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 covering costs under all heads.Default interest

48.  The Court considers it appropriate that the default interest rate 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 complaint concerning the interference with the applicant’s property in 1995 admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:

(i)        EUR 128,000 (one hundred twenty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Valeriu Griţco
Deputy RegistrarPresident

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