Communicated on 17 September 2018
SECOND SECTION
Application no. 23709/07
Uğur Gülşen SABUNCU and others
against Turkey
lodged on 5 June 2007
SUBJECT MATTER OF THE CASE
The application concerns the transfer of the applicants’ title deeds to the Adana Municipality, mainly on the basis of Law no. 221, which envisages that properties assigned to public services before 1956 would be deemed to have been expropriated, without following the expropriation procedure.
In 1979 the Adana Municipality initiated legal proceeding before the Adana Civil Court of General Jurisdiction and requested the transfer of title deeds of certain plots, which had previously been acquired by the applicants’ testator. In 1981 the court accepted the Municipality’s request and ordered that the lands be registered in the name of the Municipality. In its judgment the court concluded that as the properties in question had been assigned to public services since 1937, they must have been considered as expropriated under Law no. 221. In 1973 the applicants acquired the properties at issue by inheritance. In 1994 the title deeds of the aforementioned lands were transferred to the Adana Municipality in the land registry, in line with the court’s judgment.
In 2000 the applicants became aware of the transfer of their lands and lodged a case for the restitution of their property. However, the Adana Civil Court of General Jurisdiction dismissed their case, finding that the plots at issue fell within the scope of Law 221 and that the case was introduced out of the statutory time-limit pursuant to Article 38 of Law no. 2942. That judgment became final in 2006.
The applicants challenge the fairness of the proceedings and complain of a violation of their right to access to court within the meaning of Article 6 of the Convention. They further complain that they have been deprived of their lands in circumstances that were incompatible with the requirements of Article 1 of Protocol No. 1.
QUESTIONS tO THE PARTIES
1. Have the applicants been deprived of their possessions in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1?
(a) Did the applicants receive compensation for the expropriation of their properties? If not, did this situation place an undue burden on them (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 110, 25 October 2012)?
(b) Having regard to the State’s positive obligation to ensure in its domestic legal system that property rights are sufficiently protected by law, were the applicants afforded a reasonable opportunity of challenging effectively the measures depriving them of their right to property (Société Anonyme Thaleia Karydi Axte v. Greece, no. 44769/07, §§ 36‑38, 5 November 2009)? In particular, taking into account that the case lodged in 1979 was conducted as non-contentious proceedings (hasımsız dava), were the applicants provided with an opportunity to become a party to the case? If not, when and how did they become aware of the judgment dated 29 April 1981?
(c) To what extent did the judgment of the Adana Civil Court of General Jurisdiction dated 9 May 2002 rely on Article 38 of Law no. 2942? If so, did this breach the applicants’ right to property (Börekçioğulları (Çökmez) and Others v. Turkey, no. 58650/00, §§ 38‑44, 19 October 2006)?
(d) Having regard to its judgment dated 9 May 2002, could the Adana Civil Court of General Jurisdiction be considered to have duly assessed whether the conditions of Law no. 221 had been fulfilled in the circumstances of the applicants’ case?
2. Has there been a violation of the applicants’ right of access to a court within the meaning of Article 6 of the Convention? In particular, did the applicants have a real opportunity to challenge the expropriation of their property which resulted from the judgment of the Adana Civil Court of General Jurisdiction in 1981? The Government are invited to provide the Court with case-law examples in this matter.
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, did the Adana Civil Court of General Jurisdiction provide sufficient reasoning, taking account of the applicants’ arguments as regards the applicability of Law no. 221 in their case? In that connection, did the acceptance of the date of the occupation as 1937 match up with the material facts of the case?
The parties are invited to provide the Court with an expert report, preferably judicial, indicating the value of the lands at issue of 1994. The report should point out all the objective criteria it relies on in reaching its conclusions.
APPENDIX
Uğur Gülşen SABUNCU is a Turkish national who was born in 1942, lives in Istanbul and is represented by T.B. Sarıfakıoğlu Hatice Güler CİHAN is a Turkish national who was born in 1939, lives in Adana and is represented by T.B. Sarıfakıoğlu Ayşe SABUNCU is a Turkish national who was born in 1951, lives in Istanbul and is represented by T.B. Sarıfakıoğlu Hanım SABUNCU is a Turkish national who was born in 1919, lives in Istanbul and is represented by T.B. Sarıfakıoğlu Nevzat SABUNCU is a Turkish national who was born in 1945, lives in Istanbul and is represented by T.B. Sarıfakıoğlu Nuri SABUNCU is a Turkish national who was born in 1934, lives in Adana and is represented by T.B. Sarıfakıoğlu
Full & Egal Universal Law Academy