CEDH · CASELAW;CLIN;ENG — 27 mai 2010

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Turkey - 11765/05 Judgment 27.5.2010 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Deprivation of property De facto expropriation without payment of compensation: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required to take general measures to put an end to unlawful occupation of land   Facts – In 1983 a landowner, on discovering that three plots of land belonging to him had been incorporated de facto in a military zone, requested that a formally valid expropriation order be issued. The authorities did not act on his request, but in 2001 they brought legal proceedings to have the land in question registered as Treasury property, without payment of compensation, claiming adverse possession based on twenty years’ adverse possession. The owner of the land lodged a claim for damages seeking compensation for the damage caused by the de facto expropriation. In 2003 the district court found in favour of the applicants (the heirs of the owner, who had died in the meantime). The court ordered that the authorities pay the applicants compensation together with default interest at the statutory rate and that ownership of the land be transferred to the Treasury. The Court of Cassation upheld that judgment in 2004. The applicants subsequently requested the authorities to calculate the default interest on the basis of the maximum rate applicable to public debts. However, the compensation they eventually received at the end of 2004 was paid together with interest at the lower, statutory, rate. Law – Article 1 of Protocol No. 1: There had been interference with the applicants’ rights amounting to a deprivation of property. De facto expropriation allowed the authorities to occupy immovable property and change its intended use irreversibly, so that it came to be considered as State property without any kind of formal declaratory act transferring ownership. In the absence of such an act the only means of legitimising the transfer of the occupied property and providing some degree of retrospective legal certainty was a judgment in which the competent court ordered the transfer of ownership after finding that the impugned occupation was unlawful and awarding damages to the claimants. This practice had the effect of obliging the persons concerned (who remained the owners of the property for legal purposes) to bring court proceedings against the administrative authorities, who until that point had never had to justify their action on any public interest grounds. In cases of formal expropriation the proceedings were brought by the expropriating authority, which in principle had to pay the court costs unless there was an out-of-court settlement. In all cases, a finding of de facto expropriation legally endorsed an unlawful situation knowingly created by the authorities and enabled the latter to benefit from their unlawful conduct. De facto expropriation put the individuals concerned at risk of unforeseeable and arbitrary outcomes. The procedure did not provide a sufficient degree of legal certainty and could not be considered as an alternative to formally valid expropriation. In the instant case the applicants’ property had been expropriated de facto . In the absence of a formal act of expropriation, the outcome of the proceedings had not been foreseeable for the applicants, whose position with regard to the deprivation of their property had not been firmly established until the Court of Cassation upheld the transfer of ownership. Furthermore, the European Court could not accept that the maximum interest rate applicable to public debts should apply only to formal expropriation procedures and that a lower rate of interest should apply to unlawful expropriations, as this would encourage the authorities to carry out expropriations without any legal basis for financial reasons. Accordingly, the interference at issue had been incompatible with the principle of lawfulness and had thus breached the applicants’ right to peaceful enjoyment of their possessions. Conclusion : violation (unanimously). Article 46: In view of the large number of applications it had received concerning the issue of de facto expropriations, the Court considered that the violations originated in a structural problem linked to the Turkish administrative authorities’ extrajudicial practice of unlawfully appropriating property. General measures at national level were unquestionably called for in execution of the present judgment, and must take into consideration the large number of people affected. Hence, the State would need first and foremost to take steps aimed at preventing the unlawful occupation of immovable property, whether it was unlawful from the outset or was initially authorised and subsequently became unlawful. This might be achieved by authorising the occupation of such properties only where it was established that the expropriation project and decisions had been adopted in accordance with the rules laid down by law and that the necessary budgetary funds had been earmarked to ensure that the persons concerned received prompt and adequate compensation. In addition, the respondent State should discourage practices in breach of the rules on formally valid expropriations by adopting deterrent provisions and holding those responsible for such practices to account. Article 41: EUR 1,800 jointly for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes