SECOND SECTION

DECISION

Applications nos . 20462/04 and 21405/04 ParaÅŸkevi Ä°PSEFTEL against Turkey

The European Court of Human Rights (Second Section), sitting on 25 April 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 28 April 2004 and 26 May 2004 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. A list of the applicants is set out in the appendix.

2. ParaÅŸkevi Ä°pseftel was a Turkish national born in 1911 who was living in Athens on the date the first application was submitted and on the date the letter of authority for the second application was signed. She passed away on 8 May 2004.

3. By a letter of 1 September 2005 her representative, Mr Yücel Cesur , informed the Court that her official heirs, Dimitri İpseftel and Areti İpseftel , wished to continue the application in her place. The Court accepts that the deceased applicant ’ s heirs, whose names are mentioned in the appendix, have the requisite legitimate interest and standing to pursue the application on her behalf.

4. For practical reasons, the term applicant will be used to refer to Ms. ParaÅŸkevi Ä°pseftel .

5. The applicant and her heirs are represented by Mr Yücel Cesur , a lawyer practising in Çanakkale .

6. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

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

8. The two applications concern plots of land situated on the island of Gökçeada . Appl ication no. 20462/04 relates to land in block no. 262, parcel no. 56 while application no. 21405/04 relates to land in block no. 280, parcel no. 7.

9. Following cadastral work on the island, the plots of land in question were registered with the Land Registry in the name of the Treasury as areas of shrubbery and land ( arazi ) on 22 November 1995 and 24 January 1996 respectively. The report by the cadastral officials who carried out the work indicated that no title to the plots in question had been identified as there was no entry in the land register or in tax records, and nobody had come forward to claim ownership or possession. The officials finally held that the lands were not in the possession or at the disposal of anyone.

10. On 10 September 2002 the applicant initiated two set of proceedings before the Gökçeada Civil Court of General Jurisdiction, seeking the annulment of the Treasury ’ s title to the above-mentioned lands and their registration in her name by virtue of adverse possession ( kazandırıcı zamanaşımı ), in accordance with Article 713 § 1 of the Civil Code. In support of her application, the applicant pointed out that she had inherited the land in question from her mother, Savasti Glaro , and that she had had the land in her possession for over fifty years.

11. The domestic court conducted an on-site visit and photographs of the land and witness statements were taken. According to a report by an agricultural expert, the disputed parcels were farmland that had not been cultivated for fifteen or twenty years and were covered with wild plants.

12. According to witnesses heard by the court, the plots of land had been cultivated by the applicant and her husband, Panayot İpseftel , until about 1975. From that date the plots had been used by a man called Niko Apistola , who kept goats on them. In other words, the land in question had not been cultivated since that time. Despinula Apistola stated that she gave milk or cheese to the applicant in return for using the land in that way. Nevertheless, she indicated that she did this “partly because of the terrain and partly because she [the applicant] was an elderly person”.

13. On 18 February 2003 the Gökçeada Civil Court of General Jurisdiction dismissed the cases because the conditions for adverse possession had not been met. The domestic court held that the plots of land in question had not been used for agricultural purposes for over twenty years and the fact that they had been used for keeping goats was not sufficient to conclude that their use was consistent with their economic purpose. It considered that in the absence of such usage, the plots of land had been abandoned and there had been a break in the chain of possession.

14. In her appeal, the applicant stated that the lands had been cultivated in accordance with their economic purpose until 1975-1977. The applicant, relying on the wording of Article 713 § 5 of the Civil Code, argued that ownership of the land had been acquired on that date. The applicant further argued that the introduction in 1975 of the free grazing system ( serbest hayvanc ılık ) should have been taken into account in determining whether the use of the land in question had been in line with its economic function.

15. In that regard, the applicant relied on a judgment of the Seventh Division of the Court of Cassation dated 27 January 2003 concerning a property claim based on adverse possession in relation to other land on Gökçeada . In that case, the Court of Cassation held that in light of the free grazing system on the island, the disputed land should not be regarded as agricultural land but as a building plot ( arsa ). Accordingly, the applicant maintained that the domestic court had acted contrary to law in her case by refusing to register the property in her name on the grounds that she had not made use of the plots of land in line with their economic purpose. Lastly, the applicant argued that, in any case, possession had continued after 1977 because she had leased the plots to a third party.

16. The Eighth Division of the Court of Cassation upheld the ruling of the domestic court in two judgments, one dated 16 June 2003 for the land that was situated in block no. 262 and one on 17 October 2003 for the other land. Regarding the first ground for finding against the applicant, the Court of Cassation held that the existence of possession in a way that complies with the economic purposes of the land in favour of the applicant or her predecessors had not been demonstrated.

17. Applications by the applicant to amend the above-mentioned decisions were dismissed by the Court of Cassation on 13 October 2003 and on 17 February 2004 respectively.

B. Relevant domestic law and practice

18. A description of the relevant domestic law and practice at the material time can be found in İpseftel v. Turkey (no. 18638/05 , §§ 20-36, 2 6 May 2015).

COMPLAINTS

19. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that she had not been able to register the plots of lands in question in her name in the land register. The applicant asserted that the fulfilment of all the conditions for adverse possession at any time through the use of property in a manner consistent with its economic purpose was sufficient to acquire ownership of the property. In that respect, she objected to the decision taken by the domestic courts, which had required that the conditions for adverse possession be met while bringing an action or during cadastral registration. The applicant further maintained that a judicial decision declaring acquisition of ownership on the basis of adverse possession was of a declaratory character. In other words, it did not create a new legal situation, but only confirmed that the possessor had acquired ownership in the past, at the time of meeting the conditions.

The applicant submitted that she had never given up possession of the disputed property and that she had leased out the land in question.

In the view of the applicant, the domestic courts had misinterpreted national law, particularly Article 713 § 5 of the Civil Code, and the decisions they had rendered had not had sufficient reasoning. The applicant relied on Article 6 § 1 of the Convention in that respect.

Lastly, the applicant maintained that the introduction of the free grazing system had made the acquisition of properties through adverse possession impossible. The applicant submitted that that system had been introduced on Gökçeada owing to the large number of Turkish citizens of Greek origin. The applicant further alleged that the registration rate of properties in the name of the Treasury after cadastral surveys was probably higher on Gökçeada than in other regions of the country. In that respect, the applicant relied on Articles 13 and 14 of the Convention.

THE LAW

20. The applicant argued that she had ex lege acquired ownership of the above-mentioned plots of land by adverse possession on the basis of Article 713 of the Civil Code. The applicant maintained that the refusal of the domestic courts to acknowledge her ownership in the above civil proceedings had violated her property rights under Article 1 of Protocol No. 1 to the Convention. The applicant submitted that she had become the owner of the land in question ipso jure as soon as she had fulfilled the necessary conditions under Article 713 of the Civil Code.

21. The Government disagreed with the applicant and presented preliminary objections. Firstly, they argued that Areti İpseftel did not have any legitimate interest in pursuing the application as she was not one of the applicant ’ s heirs. They asked the Court to strike the application out of the list in so far as it concerned Areti İpseftel .

22. The Government also argued that the application was incompatible ratione materiae with the provisions of the Convention as the applicant had neither an existing possession nor a legitimate expectation of obtaining the effective enjoyment of a property right protected by Article 1 of Protocol No. 1.

23. The Government further stated that the applicant had failed to exhaust the relevant domestic remedies because she had neither raised a claim of possession in respect of the plots of land during the course of the cadastral surveys nor had she brought an action within thirty days before the cadastral courts to object to the surveys, as provided by Article 11 of the Land Registry Act (Law no. 3402).

24. As to the merits of the case, the Government submitted that the applicant had neither an existing possession nor a legitimate expectation of obtaining the effective enjoyment of a property right protected by Article 1 of Protocol No. 1. The Government maintained that anyone who fulfilled the conditions foreseen by law for the acquisition of property had the right to request the registration of such property in his or her name. That right, however, did not mean that there was an automatic entitlement to a title deed. A person only became the owner of immovable property when a court confirmed that the conditions of adverse possession had been met. In other words, the Government submitted that simply fulfilling the necessary conditions for adverse possession did not automatically convert possession of immovable property into ownership, but provided the possessor with “a right to request registration”. The Government argued that a new legal situation arose when a judge ordered registration and that order had prospective effect from the date the order became final. In consequence, they argued that the applicant had had no legitimate expectation under Article 713 of the Civil Code as that provision did not provide for an automatic right to property. In any event, the applicant ’ s application had been dismissed by the courts after they had interpreted and applied the domestic law in a manner consistent with the Convention.

25. The Court considers that it is not necessary to address all the Government ’ s objections since the complaint is in any event inadmissible for the following reasons.

26. The Court notes that it has been called upon to examine whether the applicant ’ s complaint regarding her inability to register the plots of land in question in her name through adverse possession concerns a “possession” within the meaning of Article 1 of Protocol No. 1 (see Remzi Balc ı v. Turkey ( dec. ), no. 68545/01, 10 January 2008).

27. The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001 ‑ VIII, and Gratzinger and Gratzingerova v. the Czech Republic ( dec. ), no. 39794/98 , § 69, ECHR 2002 ‑ VII).

28. In the light of its case-law, the Court does not view the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a legitimate expectation protected by Article 1 of Protocol No. 1. The Court takes the view that where the proprietary interest is in the nature of a claim, it may be regarded as an asset only where it has a sufficient basis in national law, for example where there is settled case-law confirming it (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX, and Gjonbocari and Others v. Albania , no. 10508/02, § 90, 23 October 2007).

29. Similarly, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts (see Kopecký , cited above, § 50).

31. The Court observes that the parties have differing views as to how the provisions concerning adverse possession should be interpreted and, in particular, as to the point in time when ownership of an immovable property is established. The applicant suggested that ownership of the land at issue vested in her without the intervention of the courts, whereas the Government argued that she had a “claim” rather than an “existing possession”.

32. The Court notes that under Turkish law ownership will, in principle, be acquired by adverse possession ipso jure when all the statutory conditions have been met. However, it also notes that the question of whether or not the applicant satisfied the statutory conditions for acquiring ownership by adverse possession was to be determined in proceedings before the competent courts, and that the applicant needed a declaratory judgment acknowledging her ownership in order to effectively enjoy her right to the property (see, mutatis mutandis , Trgo v. Croatia , no. 35298/04, § 46, 11 June 2009) .

33. In that regard, the Court observes that the applicant, by bringing actions before the domestic courts, hoped to acquire ownership of the land in question by adverse possession . However, the domestic courts did not accept the applicant ’ s arguments and considered that the conditions for adverse possession had not been met (see, mutatis mutandis , Bici v. Albania , no. 5250/07 , § 51, 3 December 2015) .

34. As the Court has repeatedly held, a hope that the national courts will decide in an applicant ’ s favour cannot be regarded as a form of legitimate expectation for the purposes of Article 1 of Protocol No. 1. The Court notes that there is a difference between a mere hope, however understandable that hope may be, and a legitimate expectation, which must be of a more concrete nature than a mere hope and be based on a legal provision or settled case-law (see Kopecký , cited above, § 52; Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakf ı v. Turkey ( dec. ), no. 22522/03, 9 December 2008; and İpseftel v. Turkey no. 18638/05 , §§ 58, 2 6 May 2015).

35. In view of the above considerations, the Court finds that in the context of her adverse possession claim the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1.

36. The present application also differs from its judgment in the case of İpseftel (cited above, § 18), in which the Court relied on the reasoning of the domestic court ’ s decision to conclude that the applicant had a legitimate expectation protected by Article 1 of Protocol No. 1. In that case, the domestic court stated in its reasoning that the applicant had been accepted as having a legitimate expectation but refused the claims on the basis of another provision, namely Article 11 of Law no. 2863 on the Cultural and Natural Heritage (Protection) which provides that cultural and natural heritage, their protection areas ( koruma alan ı ) and lands that are designated as conservation areas ( sit alan ı ) places shall not be acquired through adverse possession. That is not the case here.

37. The Court further observes that the G ökçeada Court , after having conducted an on-site inspection, examined witnesses as well as local and technical experts, obtained a technical and agricultural report from an agricultural engineer and looked at a number of documents, such as cadastral and tax records, concluded that the conditions for acquiring ownership of the disputed plots of land by adverse possession had not been met. The domestic court held in particular that the land had not been cultivated for 15-20 years and that therefore it was unable to consider the fact of grazing and keeping animals on the land as possession in a way which was in line with the economic purpose of the land. It accordingly held that the applicant had failed to prove a form of possession that allowed her to acquire ownership of the land in dispute by adverse possession .

38. The Court notes that it is in the first place for the national authorities and, in particular, the courts, to construe and apply domestic law. The Court ’ s jurisdiction to verify that domestic law has been correctly interpreted and applied is limited, and it is not its function to take the place of the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I) . Rather, its role is to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Weitz v. Poland ( dec. ), no. 37727/05, 23 June 2009).

39. For the Court, the assessment of the case by the domestic courts and their decisions cannot be considered as arbitrary or otherwise manifestly unreasonable, contrary to Article 1 of Protocol No. 1.

40. The Court further notes that by making such an assessment of the fairness of the domestic proceedings and their outcome it also disposes of the applicant ’ s complaint under Article 6 § 1 of the Convention.

41. It follows that the applicant ’ s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

42. As regards the applicant ’ s complaints under Articles 13 and 14 of the Convention, the Court notes that they were never raised in the proceedings before the domestic courts. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non ‑ exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35§ 4 thereof.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible .

Done in English and notified in writing on 18 May 2017 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President

Applications nos : 20462/04 and 21405/04