Communicated on 26 January 2018
SECOND SECTION
Application no. 41924/09
Yaşar TEMEL
against Turkey
lodged on 24 July 2009
SUBJECT MATTER OF THE CASE
The application concerns the classification of a plot of land located in the village of Hamzalı (Zebeşka), in the Of district of Trabzon (block no. 430, parcel no. 182) as part of the public forest area and the confiscation of the applicant’s house built on the same land.
In 2000, upon a cadastral survey, the disputed plot of land was classified as part of the public forest estate and registered in the name of the Treasury in the land register. In 2007, a criminal investigation was initiated into the allegation that the forest area was occupied by the applicant. During the criminal proceedings, the applicant claimed that he was the owner of the land as proven by his predecessor’s title deed no. 1296/480. On 11 May 2009 the Of Magistrates’ Court convicted the applicant of occupying the forest land and sentenced him to ten months’ imprisonment. Having regard to the fact that the applicant did not have any criminal record, the court considered that he would not commit any further offence and therefore decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years. In the same decision the court also ordered the confiscation of the applicant’s house built on the forest land. The applicant did not appeal against this decision. In 2009, the applicant initiated proceedings before the Of Civil Court of First Instance seeking the annulment of the classification of the land as part of the public forest estate, which are still pending.
The applicant complains that the confiscation of his house violated his rights under Article 8 of the Convention. Invoking Article 1 of Protocol No. 1 to the Convention he further complains that, as a result of the classification of his land as part of the public forest area, he was deprived of his property without receiving any compensation.
QUESTIONS tO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was it possible under Turkish law for the applicant to challenge the confiscation order without appealing against his sentence and suspension of its pronouncement? If so, the Government are invited to provide examples of such cases.
2. Has there been an interference with the applicant’s right to respect for his home, within the meaning of Article 8 § 1 of the Convention, having regard to the fact that the Of Magistrates’ Court ordered the confiscation of his house? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. In the light of the Court’s judgment in the case of Köktepe v. Turkey (no. 35785/03, 22 July 2008), has there been an interference with the applicant’s peaceful enjoyment of his possessions? If so, was that interference in compliance with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular did it impose an excessive and individual burden given the apparent absence of compensation?
The parties are requested to submit a copy of the case-file pertaining to case no. 2009/208 E. concerning the applicant’s objection to the cadastral survey before the Of Civil Court of First Instance, including any decisions delivered in the case by the first-instance, appeal and/or cassation courts.
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