CEDH · PRESS;GCJUDGMENTS;ENG — 19 février 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sC800182F { font-family:Arial; color:#0000ff } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   126 19.2.2009   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT KOZACIOĞLU v. TURKEY   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Kozacioğlu v. Turkey (application no. 2334/03).   The Court held by 16 votes to one that there had been a violation of Article 1 of Protocol No.   1 (protection of property) to the European Convention on Human Rights concerning the applicant’s complaint that, on expropriating a building he owned, the Turkish courts did not take into account its historical value when calculating compensation.   Under Article 41 (just satisfaction) of the Convention, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr   Kozacioğlu, and awarded him 75,000   euros (EUR) in respect of pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available in English and French.)   1.     Principal facts   İbrahim Kozacıoğlu, a Turkish national, died in 2005. His heirs decided to continue with the application before the Court.   In April 2000 a building belonging to the applicant was expropriated by the Ministry of Culture on the ground that it had been classified as a “cultural asset”. The applicant was paid approximately EUR   65,326 on the transfer of the property.   In October 2000 Mr Kozacıoğlu lodged an application for increased compensation, requesting that a new panel of experts re-assess the property and take into account its historical value. He argued in particular that the building in question featured on the Council of Europe’s inventory of cultural and natural heritage, and claimed approximately EUR   1,728,750 in additional compensation.   Two different panels of experts found in 2001 that, in view of the nature of the property, its value should be increased by 100   %. On 15 June 2001 the domestic court allowed part of the applicant’s claim and instructed the authorities to pay him approximately EUR 139,728 in additional compensation. However, on 19 November 2001 the Court of Cassation set aside that judgment. It held that, under section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), a building’s rarity and its architectural and historical features could not be factors for consideration in the assessment of its value. In May 2002, the domestic courts awarded the applicant a final sum of approximately EUR   45,980 in additional compensation.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 11   November 2002.   In a Chamber judgment of 31   July 2007, the Court held, by four votes to three, that there had been a violation of Article   1 of Protocol No.   1. The Court noted that the historical value of the expropriated building had not been taken into consideration when calculating compensation, either when determining the expropriation compensation or during the proceedings to increase that award. It considered that this total failure to take that element into account had deprived the applicant of the value of the expropriated property. It also held that its judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR   75,000 for pecuniary damage and EUR   1,000 for costs and expenses.   On 31   October 2007, the Turkish Government requested that the case be referred to the Grand Chamber under Article   43 [2] (referral to the Grand Chamber). That request was accepted by the Grand Chamber panel on 31   March 2008. The Grand Chamber held a public hearing in the case on 2   July 2008.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President , Christos Rozakis (Greece), Peer Lorenzen (Denmark), Josep Casadevall (Andorra), Giovanni Bonello (Malta), Karel Jungwiert (the Czech Republic), Nina Vajić (Croatia) Rait Maruste (Estonia), Ljiljana Mijović (Bosnia and Herzegovina), Dean Spielmann (Luxemburg), Renate Jaeger (Germany), George Nicolaou (Cyprus), Mirjana Lazarova Trajkovska (the Former Yugoslav Republic of Macedonia), Nona Tsotsoria (Georgia), Ann Power (Ireland), Işıl Karakaş (Turkey), Mihai Poalelungi (Moldova), judges , and also Michael O’Boyle , Deputy Registrar .   3.     Summary of the judgment [3]   Complaint   Relying on Article   1 of Protocol No.   1, the applicant complained in particular of an infringement of his right to the peaceful enjoyment of his possessions. Also relying on Article 6 (right to a fair trial), he further complained that the proceedings before the domestic courts had been unfair, in that they had refused to appoint a qualified art historian to assess the cultural and historical features of the disputed building.   Decision of the Court   The Court agreed with the Chamber that there had been a deprivation of possessions within the meaning of Article 1 of Protocol No. 1. It further noted that it was undisputed between the parties that the deprivation had been ordered “subject to the conditions provided by law” and pursued a legitimate aim, namely the protection of Turkey’s cultural heritage, which should be considered an essential value to be protected and promoted by the Government.   The Court then recalled that, where an expropriation satisfied the requirement of lawfulness, the lack of compensation to full market value did not make, in itself, the expropriation contrary to Article 1 of Protocol No. 1 provided that the expropriated person did not bear a disproportionate and excessive burden. Compensation terms under the relevant domestic legislation made it possible to assess whether the contested measure had respected the requisite fair balance and, notably, whether it had imposed a disproportionate burden on the applicant. The Court had previously held that the taking of property without payment of an amount reasonably related to its value normally constituted a disproportionate interference.     Article   1 of Protocol No. 1 did not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of “public interest” could call for the expropriated property to be reimbursed for less than its full market value. The Court considered that the protection of historical and cultural heritage was one such objective.   In the present case, in determining the amount of the compensation to be paid to the applicant, the domestic authorities had not taken into account either the rarity of the building or its architectural and historical features. The Court acknowledged that the market value of landmark buildings might be difficult to assess. However, it noted that, under Turkish law, while the specific features of such buildings might never be taken into account to the owners’ benefit, they were often used by domestic courts to depreciate the real estate value in favour of the expropriating authorities.   The Court considered that system to be unfair in that it placed the State at a distinct advantage. It enabled the depreciation resulting from a property’s listed status to be taken into account during expropriation, while any eventual increase in value was considered irrelevant in determining the compensation for expropriation. Moreover, the option of taking into account particular historical or architectural features in assessing the value of expropriated landmark buildings was not categorically ruled out in a number of other Council of Europe Member States.   It therefore concluded that, since the specific features of the expropriated building had not been taken into account to a “reasonable degree” in determining the amount of the compensation owed to the applicant, the requirements of proportionality between the applicant’s rights and the public interest pursued had not been met. There had accordingly been a violation of Article 1 of Protocol No. 1.   Having regard to its findings under Article   1 of Protocol No.   1, the Court found that it was not necessary to examine separately the allegation of a breach of Article   6.   Judge Rait Maruste expressed a dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.       [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [3] This summary by the Registry does not bind the Court.