Communicated on 10 December 2018
SECOND SECTION
Application no. 36675/07
Tokay TOZKOPARAN
against Turkey
lodged on 15 August 2007
SUBJECT MATTER OF THE CASE
The application concerns a dispute between the applicant and the Treasury concerning a plot of land. In particular, the title deed belonging to the applicant was disregarded during a cadastral survey conducted in 1954, on the grounds that it was a part of the Menderes River.
As the riverbed changed in time and the water on the land surface was withdrawn, the applicant had started to use the land at issue from 1960 onwards.
In 1984 the Treasury initiated civil proceedings against the applicant for the registration of the land in question in its name in the land registry.
Subsequently the applicant filed a counterclaim for acquisition of the land by way of adverse possession and the two proceedings were joined in 1997.
In 2004 the first instant court decided that a parcel of the land used and possessed by the applicant be registered in his name, as it had founded that the requirements of the adverse possession had been met.
Following the Treasury’s appeal against the above decision, the Court of Cassation quashed the first instant court’s decision on the grounds that the land at issue could not be acquired by adverse possession. Referring to the Court of Cassation’s decision, the first instant court rejected the applicant’s request and ordered the land at issue to be registered in the name of the Treasury in the land registry.
The applicant complains of the unfairness of the proceedings, within the meaning of Article 6 of the Convention, and alleges that the refusal of his case has violated his right to property under Article 1 of Protocol No. 1.
QUESTIONS tO THE PARTIES
1. Did the applicant have a possession within the meaning of Article 1 of Protocol No. 1? In particular, did he have a legitimate expectation as regards his claim concerning the property that he had been using for an extended period of time and that was covered by his former title deed?
2. If so, has the applicant been deprived of his possessions in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
3. Did the deprivation in question impose an excessive individual burden on him? In particular, having regard to the findings in the expert reports and the witness statements establishing the characteristic of the land at issue, as well as the allegedly conflicting decisions of the Court of Cassation as regards claims for acquisitive prescription concerning former riverbeds-streambeds (eski nehir/dere yatakları), was the dismissal of the applicant’s case compatible with the procedural requirements guaranteed by Article 1 of Protocol No. 1?
4. Did the applicant have a fair hearing in the determination of his civil rights as guaranteed by Article 6 § 1 of the Convention? In particular, did the conflicting decisions of the Court of Cassation as regards claims for acquisitive prescription concerning former riverbeds-streambeds (eski nehir/dere yatakları) comply with the requirements of legal certainty?
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