THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58650/00 by Suna BÖREKÇİOĞULLARI (ÇÖKMEZ) and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 13 January 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr R. Türmen , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , M r s R. Jaeger , Mr E. Myjer , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 25 January 2000 ,

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

The applicants, Ms Su na Börekçioğulları ( Çökmez ), Ms Nazmiye Hançerli , Mr Ahmet Göksenin Hançerli , Ms Ayşe Göknil Hançerli , Mr Şeref Hakan Hançerli and Ms Serpil Tetik ( Hançerli ), are Turkish nationals , who were born in 1935, 1957, 1980, 1983, 1967 and 1958 respectively , and live in Ankara .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are the heirs of Mustafa Çö kmez , who owned a plot of land in Ankara .

In 1942 the Ministry of Defence took actual possession of this plot of land and established a military base. Subsequently in 1981 the domestic authorities conducted land consol ida tion proceedings and revised the local plans. The Ministry of Defence continued to use the land for military purposes. When Mustafa Çö kmez died in 1990, the applicants inherited this plot of land and it was registered in their name. The applicants continued to pay the land tax every year.

On 22 March 1991 the applicants brought an action for compensation against the Ministry of Defence before the Ankara C ivil Court of General Jurisdiction . They submitted, inter alia , that the Ministry of Defence was in actual possession of the land illegally since they had not conducted expropriation proceedings or compensated the m for the damage resulting from the interference . The Ministry of Defence denied the allegations and argued that they had been in actual possession of the land since 1942 . They therefore argued that the applicants ' action for compensation had to be rejected as being time-barred.

The court ordered an expert report in order to determine the date of the actual taking possession of the land.

According to the experts ' report, it was established that the applicants ' land had been subjected to land consolidation proceedings in 1981 and the Ministry of Defence had started using the land for military purposes on 21 January 1981 .

On 9 July 1991 the first-instance court, relying on the experts ' report, decided that the Ministry of Defence was in the actual possession of the land since 21 January 1981 and therefore the applicants were entitled to receive compensation as regards the unlawful possession of their land.

The Ministry of Defence appealed. On 21 April 1992 the Court of Cassation quashed the first-instance court ' s judg ment on the ground that the facts of the case had not been properly established. The case file was sent back to the court of first instance for further examination .

On an unspecified date, the first-instance court heard witnesses on behalf of the Ministry of Defence and examined the new experts ' reports submitted by them which indicated the date of actual taking possession of the land as 1942 .

On 24 May 1996 , relying on the new experts ' reports and the evidence submitted by the Ministry of Defence, the court held that the Ministry of Defence had been in actual possession of the land since 1942 . It accordingly rejected the case for being introduced out of the statutory time - limit pursuant to Law no. 2942 on expropriation rules. The applicants ' appeal and rectification requests were rejected on 26 November 1996 and 19 March 1997 respectively.

Subsequently, on 24 June 1997 , the Ministry of Defence brought an action before the Ankara Civil Court of General Jurisdiction and requested the transfer of the title deed to the land on behalf of the Treasury.

On 23 December 1998 the court accepted the request of the Ministry of Defence and ordered the land be registered in the land registry in favour of the Treasury. On 8 March 1999 t he Court of Cassation upheld th is decision. The applicants ' request for rectification was further rejected on 18 June 1999 . This decision was served on the m on 2 August 1999 .

B. Relevant domestic law

1. The Constitution

Article 35 of the Constitution provides :

“Everyone shall enjoy the rights of property and inheritance .

These rights may not be restricted by law save in the public interest .

The right of property may not be exercised to the detriment of the general interest . ”

The relevant part of Article 46 of the Constitution, which was applicable at the material time , provided :

“The State and public legal entities shall be empowered to expropriate or charge with administrative easements, in the cases and according to the procedure prescribed by law and in exchange for prior compensation corresponding to the value of the expropriated property, all or part of the immovable property belonging to private individuals where the public interest so requires . ”

At the material time , under provisional Article 15 of the Constitution, it was not possible to request review of the constitutionality of legislative provisions – including Law n o. 2942 of 4 N ovemb e r 1983 – enacted during the transitional period after the 1980 coup d ' é tat. However , when the Constitution was amended on 3 N ovemb e r 2001 this derogation was repealed .

2. Law no. 2942 of 4 November 1983

Section 38 of the Expropriation Act (Law no. 2942 of 4 November 1983 ), annulled on 10 April 2003 (see below), re ad as follows:

“Extinction of rights

In the case of immovable property subject to expropriation where the expropriation procedure has not ended or of immovable property whose expropriation has not been requested but which has been assigned to public-service use or on which buildings intended for public use have been erected , all the rights of owners , possessors or their heirs to bring an action relating to that property shall lapse after 20 years . Time shall begin to run on the date of the occupation of the property . ”

Law no. 221 of 5 January 1961 also governs the status of property assigned de facto to public-service use . Under section 1 of Law no. 221 , property assigned to public-service use is deemed to have been expropriated without the expropriation procedure having been followed . Under s e ction 4 the right to claim the value of such property lapsed after two years from the date of Law no. 221 ' s entry into force .

Under the provisional section 4 of Law no. 2942, Law no. 221 applies to civil actions brought by owners or their successors in title where no final judgment has been given .

3. Case-law of the Constitutional Court

In a judgment given on 10 April 2003 , published in the Official Gazette on 4 November 2003 , the Constitutional Court unanimously declared section 38 of Law no. 2942 unconstitutional and a nullity. It gave the following grounds in particular:

“ ... E xpropriation, as provided for in Article 46 of the Constitution ... is a restriction of the right of property in exchange for fair prior compensation ...

E xpropriation ... is a constitutional restriction of the right of property within the meaning of Article 35 of the Constitution. The administrative authorities may not restrict that right unlawfully in breach of the relevant legislation and the principles of expropriation. According to the provision complained of , when 20 years have passed since a de facto ( el atma ) occupation , effected without going through a formal expropriation procedure ..., that unlawful act produces all the effects of a lawful expropriation and may give rise to registration of the property in the land registers in the name of the administrative authorities . However, de facto occupation is not provided for in the Constitution. To accept that an owner ' s right to bring an action lapses and that the property must be transferred to the administrative authorities twenty years after the occupation without any consideration being given would be contrary to the right of property and would impair the very substance of that right .

For those reasons , that rule is contrary to Articles 13, 35 and 46 of the Constitution.

... Authorising the State or public legal entities to deprive private individuals arbitrarily of their right of property and their right to compensation is contrary to the principle of the rule of law .

Moreover , a State governed by the rule of law must respect the universal principles of law in its acts . One of the general principles of law is the ' timeless ' nature of the right of property, in other words it is not limited in time. The fact that over a period of twenty years the owners of an item of immovable property, their successors in title or their heirs have not enjoyed the rights in respect of that property that the Civil Code and the Code of Obligations confer on them may be regarded as the lack of a de facto link with that right ; it does not mean, however, that the de jure link has disappeared . A State governed by the rule of law must respect acquired rights in its acts ...

Furthermore , the European Court of Human Rights has held in numerous cases that deprivation of possessions without expropriation infringes the right of property, as guaranteed by Article 1 of Protocol No. 1. In the cases of Papamichalopoulos v . Gr ee ce (n o. 14556/89), Carbonara and Ventura v. Italy (n o. 24638/94) and Belvedere Alberghiera S.R.L. v . Ital y (n o. 31524/96), de facto occupation by the Greek navy and Italian local authorities was held to be contrary to the right of property .

In the light of the above considerations, the provision complained of must be declared null and void, being contrary to Articles 2, 13, 35 and 46 of the Constitution. ”

Article 153 § 5 of the Constitution provides that judgments in which the Constitutional Court declares legislation null and void are not to be applied retrospectively .

COMPLAINT

The applicants complain that they ha ve been deprived of their land in circumstances that were incompatible with the requirements of Article 1 of Protocol No. 1. They allege that unlawful interference with the ir land and the domestic court decisions violated their right to property.

THE LAW

The applicants complain that they ha ve been deprived of the peaceful enjoyment of their possession in contraventi on of Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The Government ' s objections

The Government maintain in the first place that the applicants failed to exhaust domestic remedies in respect of their complaints. In this respect, they assert that the applicants could have brought an action before the domestic courts and requested that the interference with their land be halted. In the second place, they maintain that it would have been possible for the applicants to seek redress before the admi nistrative courts under Article 125 of the Constitution which provides that a ll acts and decisions of the a dministration are subject to judicial review . Moreover, under S ection 13 of Law no. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. As the applicants did not have recourse to any of these remedies, the Government request the Court to reject the application for non-exhaustion of domestic remedies.

The Court recalls that the only remedies which Article 35 § 1 of the Convention requires to be exhausted a re those that are effective and capable of providing redress for an applicant. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent state, if it pleads non-exhaustion, to establish that the various conditions are satisfied.

I n the instant case , the Court notes that the applicants ' principal complain t concerns the unjustified interference with their right to peaceful enjoyment of their property. It observes that the land in dispute had been registered first in the name of Mr Çökmez and then subsequently in the name of the applicants without interruption until 18 June 1999 . The applicants continued to pay their land tax every year until their title deed was transferred to the Treasury by the court decision. Accordingly, it can be concluded that none of the domestic remedies referred to by the Government were capable of providing an effective remedy to the applicants in the circumstances of the instant case.

The Government further submit that the application contravened the six -month time- limit pursuant to Article 35 of the Convention, as the final decision which dismissed the applicants ' request for compensation was delivered on 19 March 1997 , whereas the application was lodged with the Court on 25 January 2000 .

T he Court observes that the applicants have lodged their application within six months following the annulment of their title deed to the land by the decision of the domestic courts . As their complaint concerns the unjustified transfer of the title deed in the name of the Treasury, it concludes that the y have filed their application within six months as foreseen by Article 35 of the Convention.

In view of the above, t he Court rejects the Government ' s objections.

B. The merits

The applicants allege that they were deprived of their land without being paid compensation for their loss. They maintain in this respec t that Section 38 of the Expropriation Act constitutes a breach of their peaceful enjoyment of their possessions.

The Government den y the allegations.

The Court considers in the light of the parties ' submissions that th e application raise s complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. It concludes, therefore, that th e application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible , without prejudging the merits of the case.

V incent Berger Boštjan M. Zupančič Registrar President