CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 mai 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   426 27.05.2010   Press release issued by the Registrar   Chamber judgment [1] Sarica and Dilaver v. Turkey (application no. 11765/05)     THE PRACTICE OF DE FACTO EXPROPRIATION REPRESENTS A STRUCTURAL PROBLEM   Unanimously :   Violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights     Principal facts   The applicants, İsmail Sarıca, Hüseyin Sarıca, Yalçın Sarıca, Hüseyin Adnan Sarıca and Şehbal Sarıca Dilaver, are five Turkish nationals who were born respectively in 1940, 1951, 1958, 1934 and 1945 and live in Kocaeli (Turkey). They are the heirs of Mr A. Sarıca, who died in June 2002. In 1983 Mr Sarıca, observing that three plots of land in Kandıra belonging to him had been incorporated de facto in a military zone, requested that a formally valid expropriation order be issued. The authorities informed him that the land in question would be formally expropriated in the near future. On 28 March 2001, however, the authorities brought legal proceedings to have the land in question entered in the land register in the Treasury’s name, without payment of compensation, claiming adverse possession (based on 20 years’ occupation in accordance with section 38 of Law no. 2942, in force at the time). On 15 October 2001 Mr Sarıca lodged a claim for damages.   On 7 March 2002 the Kandıra District Court, which was examining both claims, found that the conditions for adverse possession had not been met and ruled in Mr Sarıca’s favour. The Court of Cassation quashed that judgment on the ground that the de facto occupation of the land had begun in 1968 and not in 1983, with the result that the period of time required by the law had been complied with. On 10 April 2003 Law no. 2942 was set aside by the Constitutional Court, ruling after the case had been referred to it. The court ordered that the applicants, as Mr Sarıca’s heirs, be paid compensation together with default interest at the statutory rate with effect from 15 October 2001, and that ownership of the land be transferred to them. On 24 February 2004 that judgment was upheld by the Court of Cassation. On 13 April 2004 the applicants applied to the local enforcement and debt recovery office, requesting that the default interest on the debt owed to them be calculated on the basis of the maximum interest rate applicable to public debts, as defined by Article 46 of the Constitution, rather than on the lower statutory rate. The enforcement office issued the administrative authorities with a payment order to that effect. On 31 May 2004, however, the Kandıra Enforcement Court allowed an objection by the administrative authorities, ruling that Article 46 of the Constitution applied only to formal expropriations and not to awards of damages following de facto expropriation, as in the present case. The Court of Cassation upheld that judgment. The sums due were paid to the applicants at the end of 2004.   Complaints, procedure and composition of the Court   Relying mainly on Article 1 of Protocol No. 1 (protection of property), the applicants alleged an infringement of their right to peaceful enjoyment of their possessions, arguing that the administrative authorities had occupied the disputed land for many years without a formally valid expropriation order. They further alleged that the decision of the domestic courts to apply the statutory default interest rate to their claim rather than the maximum rate applicable to public debts had resulted in the amount of compensation due to them being reduced.   The application was lodged with the European Court of Human Rights on 9 March 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), Nona Tsotsoria (Georgia), judges ,   and Sally Dollé , Section Registrar .     Decision of the Court   Protection of property (Article 1 of Protocol No. 1)   It was not disputed by the parties that there had been interference with the applicants’ right to peaceful enjoyment of their possessions. The Court’s task was to ascertain whether that interference had struck a fair balance between the demands of the general interest of the community and the protection of the applicants’ fundamental rights.   In general terms, the Court observed first of all that the practice of de facto expropriation enabled the authorities to occupy immovable property and change its intended use irreversibly, so that it eventually came to be considered as State property without any kind of formal declaratory act transferring ownership. In such circumstances the only means of legitimising the transfer of the occupied property and providing some degree of retrospective legal certainty was a judgment by the competent court ordering the transfer of the property after finding that the occupation complained of had been unlawful and awarding damages to the persons concerned. 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 addition, the individuals concerned had to pay the court costs, which would normally be borne by the authorities in cases of formal expropriation. The purpose of a finding of de facto expropriation was in all cases to legally endorse an unlawful situation knowingly created by the authorities and to enable the latter to benefit from their unlawful conduct. The procedure in question, which allowed the authorities to disregard the rules governing formal expropriations, put the individuals concerned at risk of unforeseeable and arbitrary outcomes. It did not provide a sufficient degree of legal certainty and could not be considered as an alternative to formally valid expropriation.   With regard to the present case, the Court observed that the authorities had appropriated the applicants’ land in disregard of the rules on formal expropriation and without awarding them any compensation. The Turkish courts had endorsed the practice of de facto expropriation by ruling that the applicants had been deprived of their possession as a result of the occupation of their land by the authorities in the public interest. 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 24 February 2004, when the Court of Cassation had upheld the property transfer. Furthermore, the Court could not accept that the maximum interest rate applicable to public debts should apply only to formal expropriation procedures, as that would encourage the authorities to carry out unlawful expropriations in order to save money. In conclusion, the interference with the applicants’ right to peaceful enjoyment of their possessions had been incompatible with the principle of lawfulness. The Court therefore held that there had been a violation of Article 1 of Protocol No. 1.   Binding force and execution of judgments (Article 46)   The Court, which received a large number of applications similar to the present one, was of the view that there was a structural problem linked to the Turkish administrative authorities’ practice of unlawfully appropriating property.   It reiterated that the respondent State was free to choose the means by which it discharged its legal obligation to execute a judgment, provided that such means were compatible with the Court’s conclusions. Nevertheless, in view of the structural nature of the problem identified in this judgment, it observed that general measures at national level were undoubtedly called for in its execution, measures which must take into consideration the large number of people affected. First and foremost, the State would need to take measures aimed at preventing the unlawful occupation of immovable property, whether such possession 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, Turkey should discourage practices incompatible with the rules on formally valid expropriations by adopting deterrent provisions and holding those responsible for such practices to account.   Just satisfaction (Article 41)   The Court held that Turkey was to pay the applicants 1,800 euros (EUR) jointly for non-pecuniary damage and EUR 1,000 for costs and expenses.     ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   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] Under Article 43 of the Convention, 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.