Information Note on the Court’s case-law No. 110
July 2008
Köktepe v. Turkey - 35785/03
Judgment 22.7.2008 [Section II]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Classification of land as public woodlands without compensation: violation
Facts:The applicant acquired a piece of land which the Treasury had sold to a private individual, in whose name it had been registered in the land register as agricultural land. The General Directorate of Land Registration issued the applicant with a title deed. Meanwhile, the Forestry Commission had set about officially delimiting the public forest estate, as a result of which part of the plot of land concerned had been included within the boundaries of the public forest. No mention of this was made in the land register at the time. The applicant applied to the District Court for judicial review of the decision delimiting the public forest areas, arguing that the decision was defective. After examining diverging expert reports, the court followed the findings of a report that placed part of the land at issue within the public forest, noted that public forest land could not be privately owned and accordingly dismissed the applicant’s action. An appeal by the applicant to the Court of Cassation was dismissed, as was his subsequent revision request.
The applicant twice received a suspended sentence of one year and three months’ imprisonment, on one occasion for clearing part of the land without permission and on the other for growing wheat on the cleared land. Furthermore, the Ministry of Forestry brought an action for the annulment of the applicant’s title to the disputed land and for its registration as Treasury property in the land register. Allowing a request by the Ministry for interim measures, the Turkish courts ordered the Land Registry to add an annotation to the register preventing the transfer of the land to third parties. The proceedings were still pending.
Law: The applicant owned property to which he had a valid title deed. However, as the disputed land was classified as public forest, there had been an interference with the applicant’s right to the peaceful enjoyment of his possessions. The impugned restriction had resulted in a considerable reduction in the applicant’s ability to enjoy the land. By a judicial decision the authorities had classified the disputed land as public forest. In spite of the applicant’s objections to that classification, the domestic courts had upheld that decision, in accordance with the provisions of the Constitution, based on expert reports. Having regard to the reasoning given by the courts, the aim pursued in depriving the applicant of his possession, namely the protection of nature and forests, fell within the public interest. And economic imperatives and even certain fundamental rights, including the right of property, should not be placed before considerations relating to environmental protection, in particular when there was legislation on the subject. This case differed from the decision in Ansay v. Turkey (no. 49908/99, 2 March 2006). The applicant had acquired the disputed land in good faith, at a time when it was indisputably classified as agricultural land and free of any restrictions in the land register, which was the authoritative legal document. No irregularity could therefore be held against the applicant with regard to his acquisition of the land. As matters stood, however, despite still having title to it, the applicant, who had purchased a field of farmland, was unable to cultivate or harvest it or to enter into any transaction in respect of the land. He therefore had no real possibility of enjoying the land.
That being so, the classification of the disputed land as public forest had effectively rendered the applicant’s lawfully acquired right of property devoid of any substance. Furthermore, there was no effective domestic remedy in terms of compensation. The circumstances of the case, in particular the permanent nature of the delimitation, the lack of any effective domestic remedy in respect of the situation, the impairment of the full enjoyment of the applicant’s right of property and the lack of compensation led the Court to find that the applicant had had to bear an individual and excessive burden which had upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions.
Conclusion: violation (five votes to two).
Article 41 – reserved.
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This summary by the Registry does not bind the Court.
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