SECOND SECTION
DECISION
Application nos 44573/08 and 53211/08
Tevrat TÜRKCAN against Turkey
and Süleyman HOCAOĞLU against Turkey
The European Court of Human Rights (Second Section), sitting on 28 March 2017 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 9 September 2008 and 27 October 2008 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Turkish nationals. Their names and birth dates, as well as the names of their representatives, appear in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants were owners of plots of land which were designated as part of the public forest area. Subsequently, the administrative authorities initiated proceedings before the domestic courts. As result of these proceedings, title deeds of the applicants were annulled and the plots of land in dispute were registered in the name of the Treasury.
5. The details of the applications are set out in the attached table.
B. Relevant domestic law
6. A description of the relevant domestic law regarding the designation of lands as public forest area may be found in Köktepe v. Turkey (no. 35785/03, §§ 36-65, 22 July 2008); Altunay v. Turkey ((dec.), no. 42936/07, §§ 20-27, 17 April 2012); and Arıoğlu and Others v. Turkey ((dec.), no. 11166/05, §§ 9-18, 6 November 2012).
COMPLAINT
7. The applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to property had been violated. They claimed that although they had valid title deeds, they were deprived of their property without any compensation.
THE LAW
8. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
9. The applicants complained of a violation of Article 1 of Protocol No. 1 to the Convention, alleging that the annulment of their title deeds without any compensation constituted a disproportionate burden and thus breached their right to peaceful enjoyment of their possessions.
10. In their submission of 2 December 2016 the Government submitted that the applications should be declared inadmissible for non-exhaustion of domestic remedies, as the applicants should request compensation for their loss pursuant to Article 1007 of the Civil Code.
11. The Court observes that following its previous judgments on the subject, in November 2009 the Court of Cassation reversed its position on the application of Article 1007 of the Civil Code, thus allowing compensation to be paid to those who had been deprived of property forming part of a public forest area. The Court of Cassation confirmed that approach in several subsequent judgments. It later adopted a position on the time-limit for bringing a compensation claim and the method for calculating the amount to be awarded. Thus, a claim for compensation corresponding to the real value of the property could be brought within ten years from the date on which the judgment declaring the document of title void had become final. This remedy is now being used regularly (see Mehmet Altunay v. Turkey (dec.), no. 42936/07, §§ 25-27, 17 April 2012, and Arıoğlu and Others v. Turkey (dec.), no. 11166/05, §§ 15-16, 6 November 2012).
12. In this context the Court concluded in Mehmet Altunay (cited above, §§ 32-38) and Arıoğlu and Others (cited above, §§ 26-33) that as a result of the recent changes in the domestic law, the applicants could seek redress before domestic courts. There is no reason to adopt a different approach in the present cases. The Court observes that the domestic courts’ decisions annulling the applicants’ title deeds both became final in 2008 and therefore the applicants can still initiate proceedings before the domestic courts based on Article 1007 of the Civil Code within ten years from the date on which the final judgments depriving them of their property were served on them.
13. In view of the above, the Court concludes that the applicants should avail themselves of the new remedy and that the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 4 May 2017.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Application no. and case name
Introduction date
The Applicant’s
Name, Date of Birth, and
Place of Residence
Represented by
Details of the land in dispute
Date and no. of the first instance court decision that annulled the title deed to the land
Date and no. of the Court of Cassation’s final decision and notification date
44573/08
Türkcan
09/09/2008
Tevrat Türkcan,
05/12/1955, Berlin
Gülsüm Özdemir,
İstanbul
İstanbul, Eyüp, Pirinççi,
Plot No. 3,
Parcel No. 189
Eyüp Civil Court of First Instance,
09/11/2006
E: 2002/1030
K: 2006/354
04/03/2008
E:2008/866
K:2008/3403
and
03/04/2008
53211/08
Hocaoğlu
27/10/2008
Süleyman Hocaoğlu,
1947, Mersin
Mustafa Göncü,
İstanbul
Mersin, Merkez, Kuyuluk,
Parcel No. 1500
Mersin Civil Court of First Instance,
08/03/2007
E: 2005/522
K: 2007/124
08/07/2008
E:2008/6274
K:2008/10086
and
17/07/2008
Full & Egal Universal Law Academy