Resolution CM/ResDH(2012)105[1]
Execution of the judgments of the European Court of Human Rights
23 cases against Turkey
(see Appendix for the list of cases)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern the applicants’ right to peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1) (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, the respondent State paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent State (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2012)105
Information on the measures taken to comply with the judgments
in 23 cases against Turkey
Introductory case summary
These cases concern violation of the applicants’ right to peaceful enjoyment of their possessions. According to the Treasury, property belonging to the applicants was part of the coastline and therefore could not be owned by private individuals by virtue of the relevant legislation. Consequently, the entries of the properties in the land register were cancelled by domestic court decision. However, no compensation was awarded to the applicants on account of the damages suffered. The Court found that deprivation of the applicants’ right to property without any form of compensation amounted to a violation of Article 1 of Protocol No. 1 to the Convention.
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
N.A. and others (37451/97)
550 000 EUR
-
5 000 EUR
555 000 EUR
Paid on 22/08/2007
Kalyoncu (41220/07)
10 000 EUR
-
3 500 EUR
13 500 EUR
Paid on 06/10/2009
Karakuş (19467/07)
120 000 EUR
-
2 000 EUR
122 000 EUR
Paid on 14/12/2009
Mustafa Koçer (9738/06)
-
-
-
-
Terzioğlu and others (16858/05)
274 000 EUR
-
3 260 EUR
277 260 EUR
Paid on 07/09/2009
Fatihoğlu and Ugutmen (43498/04)
-
-
-
-
Andıçoğlu (23249/04)
18 714 EUR
-
-
18 714 EUR
Paid on 28/05/2009
Berber (20606/04)
50 300 EUR
-
-
50 300 EUR
Paid on 07/09/2009
Taci and Eroğlu (18367/04)
25 000 EUR
-
500 EUR
25 500 EUR
Paid on 08/11/2007
Kutluk and others (1318/04)
15 500 EUR
-
-
15 500 EUR
Paid on 26/11/2008
Tozkoparan (29128/03)
290 000 EUR
-
-
290 000 EUR
Paid on 06/03/2008
Yurtöven (21850/03)
20 000 EUR
-
500 EUR
20 500 EUR
Paid on 15/01/2008
Katayıfçı (16480/03)
120 000 EUR
-
500 EUR
120 500 EUR
Paid on 25/12/2007
Mogul (40217/02)
18 000 EUR
-
2 500 EUR
20 500 EUR
Paid on 02/07/2007
Özdemir (36531/02)
35 000 EUR
-
500 EUR
35 500 EUR
Paid on 06/11/2007
Asfuroğlu (36166/02)
440 000 EUR
-
4000 EUR
444 000 EUR
Paid on 08/10/2007
Aslan and Özsoy (35973/02)
150 000 EUR
-
5 000 EUR
155 000 EUR
Paid on 27/07/2007
Abacı (33431/02)
40 000 EUR
-
693 EUR
40 693 EUR
Paid on 03/04/2009
Doğrusöz and Aslan (1262/02)
26 000 EUR
-
-
26 000 EUR
Paid on 23/01/2007
Tuncay (1250/02)
200 000 EUR
-
4 000 EUR
204 000 EUR
Paid on 22/08/2007
Uslu (43/02)
50 000 EUR
-
992 EUR
50 992 EUR
Paid on 18/11/2008
Gümüşoğulları (40/02)
90 000 EUR
-
1 200 EUR
91 200 EUR
Paid on 19/08/2008
Miçooğulları (75606/01)
15 000 EUR
-
380 EUR
15 380 EUR
Paid on 07/12/2007
b) Individual measures
In these cases, the Court awarded just satisfaction in respect of pecuniary damages suffered by the applicants. Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
The Court of Cassation has established new case-law according to which the State has an objective responsibility for keeping the records in the land register and the administration has to pay damages to those who sustain loss as a result of incorrect registration. A certain number of consequences arise from this new case-law of the Court of Cassation:
- Objective responsibility of the State: In a judgment of 18/09/2008 (E. 2007/14851, K. 2008/10543), the Court of Cassation considered that the responsibility enshrined in Article 1007 of the Civil Code ("The State is responsible for all damages arising out of the administration of the land register"), constituted an objective responsibility which did not depend on the existence of a fault on behalf of the authorities. In this particular case, the first-instance courts had cancelled the plaintiff’s title deeds, considering that the plots of land were located on the coastline, despite the fact that there was no indication on this point in the land register and the plaintiff had bought this land relying on the information in the register. The Court of Cassation quashed the decision rendered by the first-instance court, considering that it was necessary to award compensation to the plaintiff by relying on the criteria of objective responsibility of the State as enshrined in Article 1007 of the Turkish Civil Code. The same principle was reiterated by the Court of Cassation in its judgments of 29/11/2007(E. 2007/1940, K. 15047), 03/04/2008 (E. 2007/517, K. 2008/177) and 25/11/2008 (E. 2008/2501, K. 2008/14587).
- The good faith of the buyer: In its judgment of 03/04/2008 (E. 2007/517, K. 2008/117), the Court of Cassation considered that a plaintiff is presumed to have acted in good faith if he/she bought his/her property relying on the information in the land registers. This conclusion was repeated in other judgments of the Court of Cassation.
- Compensation: In a case concerning the cancellation of a plaintiff’s title deed on the ground that the land in question was situated on the coastline, the Court of Cassation ordered the administration to pay damages (equivalent to the rate of compensation for expropriation) to those who acquired property in good faith on the basis of the information in the land register. As for the amount of the compensation determined by the Court of Cassation, this should correspond to the exact value of the land in question.
- Assessment of the case-law of the European Court: In its judgment of 12/11/2007 (E. 2007/9403, K. 2007/10807), the Court of Cassation, recalling that the European Convention was a part of the Turkish law by virtue of the Article 90 of the Constitution, referred to the European Court’s judgment in Dogrusöz and Arslan (1262/02), and found that the interference with plaintiff’s right to property was not proportionate to the legitimate aim pursued because of the excessive burden imposed on him. Referring to Article 41 of the European Convention, the Court of Cassation awarded compensation to the plaintiff in that particular case (same principle, the judgments of 24/09/2008 -E. 2008/7459, K. 2008/9727-, 17/09/2009 -E. 2008/7386, K. 2008/9359).
- Publication and dissemination: The judgment of the European Court in the precedent case of N.A. and Others was translated into Turkish and was brought to the attention of the relevant authorities.
- Judgment of the European Court in the case of Hüseyin Ak and others (15523/04 and 15891/04): The European Court in this case considered that it appeared that anyone who was in the same situation as the applicants in these cases would be able to obtain compensation as a consequence of this case-law of the Court of Cassation. According to the European Court, the case-law of the Court of Cassation constituted sufficient basis to acquire compensation in similar cases.
III.Conclusions of the respondent State
The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 6 June 2012 at the 1144th Meeting of the Ministers’ Deputies.
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