SECOND SECTION

CASE OF ASFUROÄž LU AND OTHERS v. TURKEY

( Applications nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02 and 38616/02 )

This version was rectified on 2 July 200 7

under Rule 81 of the Rules of Court

JUDGMENT

STRASBOURG

27 March 2007

FINAL

09/07/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of AsfuroÄŸ lu and Others v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs A. Mularoni , Ms D. Jočienė , judges , and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 6 March 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in eight applicat ions (nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02, and 38616/02 ) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by ten Turkish nationals, Mr Bedi A s furo ğ lu [1] , Mr C em P ı nar , Mr Cemil Ö zdemir, Mr Suphi Delio ğ ullar ı , Mr Mehmet A s furo ğ lu 1 , Ms H ü lya Matkap , Ms Seher Ekmek ç i , Mr Sefik Ba ğ dad ı o ğ lu , Mr Edip Had ı mo ğ ullar ı and Mr Kerim Berrak , on 4 and 11 July and 1 October 2002 .

2 . The first eight applicants were represented by Mr Z. Emir, a lawyer practis ing in Hatay , and the last two applicants were represented by Mr M. Hadimo ğ lu , a lawyer practising in Ankara . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3 . On 7 March 2006 the Court decided to give notice of the application s to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant s were born in 1937, 1954, 1944, 1944 , 1920 , 1964, 1959, 1928, 1958 and 1958 , respectively, and live in Hatay .

5 . On various dates, the applicants bought plots of land, near the coast, in Hatay . Some of the applicants constructed houses, others built restaurants and hotels on this land.

6 . In 1995 the SamandaÄŸ Municipality , acting on behalf of the Treasury, requested the SamandaÄŸ Court of First Instance to determine whether the applicants ' land w as located within the coastline area . A group of experts, composed of a geomorphologist , a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants ' land and concluded that it w as located within the coastline area .

7 . Following the conclusion of the experts ' report, the Treasury filed actions before the SamandaÄŸ Court of First Instance requesting the annulment of the applicants ' title-deeds to the plots because of their coastal area locat ion .

8 . On various dates, the SamandaÄŸ Court of First Instance, after having obtained additional expert reports, upheld the request of the Treasury and decided to annul the title-deeds of the applicants. In its decisions, the court held that, pursuant to domestic law, the coast could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the land.

9 . The applicants ' appeals against the judgments of the first-instance court were dismissed by the Court of Cassation. The applicants ' requests for rectification of these decisions were also rejected by the Court of Cassation.

The d etails are indicated in the table below:

APPLICATION NO.

NAME OF THE APPLICANT

DATE OF DECISION OF THE FIRST ‑ INSTANCE COURT

DATE OF FINAL DECISION OF THE COURT OF CASSATION

DATE OF NOTIFICATION OF THE FINAL DECISION OF THE COURT OF CASSATION

36166/02

Bedi AsfuroÄŸlu

24.12.1999

21.01.2002

20.02.2002

36249/02

Cem Pınar

30.12.1999

14.01.2002

20.02.2002

36263/02

Cemil Özdemir

30.12.1999

17.01.2002

20.02.2002

36272/02

Suphi Delioğulları

24.12.1999

24.01.2002

06.03.2002

36277/02

Mehmet AsfuroÄŸlu

24.12.1999

14.01.2002

20.02.2002

36319/02

Hulya Matkap

Seher Ekmekci

30.12.1999

24.01.2002

06.03.2002

36339/02

Şefik Bağdadı oğlu

24.12.1999

17.01.2002

20.02.2002

38616/02

Edip Hadı moğulları

Kerim B errak

16.12.1999

28.02.2002

02.04.2002

II. THE RELEVANT DOMESTIC LAW

10 . The relevant domestic law is set out in the Court ' s judgments in the cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005) and Doğrusöz and Aslan v. Turkey (no. 1262/02 , § 16, 30 May 2006 ).

THE LAW

11 . In view of the similarity of the eight applications, the Court finds it appropriate to join them.

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N O . 1

12 . The applicant s complained that the authorities had deprived them of their property without payment of compensation, in violation 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. Admissibility

13 . T he Government submitted that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Conve ntion, as they had failed to make proper use of the administrative and civil law remedies available to them in domestic law.

14 . The applicants contended that there were no effective remedies i n domestic law concerning their property right s .

16 . The Court therefore rejects the Government ' s preliminary objection. It further notes that the application s are not inadmissible on any other ground s and must, therefore, be declared admissible .

B. Merits

1. Arguments o f the Parties

17 . The Government maintained that, accor ding to the Constitution, the coastlines belong to the State and can never become private property. They maintained th at, by cancelling the applicants ' title s , the Samandag Court of Firs t Instance had actually corrected an unlawful situation. Moreover, they alleged that , since it was not possible to expropriate propert y which already belon ged to the State, the applicants cannot be awarded compensation for the annulment of their title - deed s . However, the applicants had the right to lodge a “full remedy suit” or other claim for pecuniary damage under the Code of Obligations. Yet they failed to make use of this right.

18 . The applicants maintained their allegation s .

2. The Court ' s assessment

19 . The Court has examined similar cases on previous occasions and has found violations of Article 1 of Protocol No. 1 in respect of the annulment of title - deeds or the destruction of houses, purchased in good faith, but restored to State ownership without compensation being paid (see the aforementioned judgments in N.A. and others , §§ 36 ‑ 43, and DoÄŸrusöz and Aslan , § § 26 ‑ 32). The Court finds no reason to depart from that conclusion in the present cases.

Accordingly, it finds that there has been a violation of Article 1 of Protocol No. 1.

II. OTHER ALLEGED V IOLATIONS OF THE CONVENTION ( Application no. 38616/02)

20 . The applicants , Edip Hadımoğulları and Kerim Berrak , further complained of violations of Articl es 6 and 17 of the Convention. They allege d that the domestic court ' s decision to annul their title-deed to the plot of land in question was unfair and against the provisions of both domestic and international law.

21 . The Government contested these arguments.

22 . However, a n examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

23 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

24 . The applicant s claimed different amounts in respect of their pec uniary and non-pecuniary damage .

25 . The Government contested the claims, arguing that they were unsubstantiated and excessive. M oreover, they alleged that land of this nature cannot have a market value and that the unilateral assessments of the bu ildings had no binding effect.

26 . The Court reiterates that when the basis of the violation found is the lack of compensation, rather than any inherent illegality in the taking of the property , the compensation need not necessarily reflect the property ' s full value ( I.R.S and Others v. Turkey (just satisfaction), no. 26338/95, §§ 23 ‑ 24, 31 May 2005). It therefore deems it appropriate to fix a lump sum that wo uld correspond to an applicant ' s legitimate expe ctations to obtain compensation ( Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 254 ‑ 259, ECHR 2006 ‑ ... , Stornaiuolo v. Italy , n o. 52980/99, §§ 82 ‑ 91, 8 August 2006, and DoÄŸrusöz and Aslan , cited above, § 36).

APPLICATION NO

NAME OF THE APPLICANT

AMOUNT

36166/02

Bedi AsfuroÄŸ lu

40,000

36249/02

Cem P ı nar

80 ,000

36263/02

Cemil Ö zdemir

80 ,000

36272/02

Suphi D elioğulları

40 ,000

36277/02

Mehmet AsfuroÄŸ lu

25 ,000

36319/02

Hü lya Matkap

Seher Ekmekç i

80 ,000 jointly

36339/02

Sefik B ağdadıoğ lu

70 ,000

38616/02

Edip Hadımoğulları

Kerim B errak

25 ,000 jointly

28 . As regards the applicants ' cla im for non-pecuniary damage , the Court finds that, in the circumstances of the present cases, the finding of a violation constitutes sufficient just satisfaction (cf. the aforementioned Doğrusöz and Aslan judgment, § 38).

B. Costs and expenses

29 . The applicant s each claimed 2,000 US Dollars for the cost s and expenses incurred before the domestic courts and for those incurred before the Court.

30 . The Government contested these claims, arguing that no credible evidence has been submitted by the applicants to support the purported lawyer s ' fee s , and costs and expenses. They also added that the amounts claimed were excessive .

31 . According to the Court ' s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). In the present case, although their requests are not duly documented, the Court find s it a ppr o priate to award the applicants, for each case in question, the sum of 500 Euros (EUR), that is to say a total of EUR 4,000. If there is more than one ap plicant in the same case, this sum must be paid jointly to such applicants.

C. Default interest

32 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to join the applications;

2. Declares application no. 38616/02 admissible as regards the complaint under Article 1 of Protocol No. 1 and the remainder of the case inadmissible;

3. Declares the other applications admissible ;

4 Holds that there ha s been a violation of Article 1 of Protocol No. 1 in each case ;

5 . Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

6 . Holds

(a) that the respondent State is to pay the applicant s , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums for pecuniary damage;

i . application no. 36166/02, EUR 40,000 (forty thousand euros) to Bedi AsfuroÄŸ lu;

ii. application no. 36249/02, EUR 80 ,000 ( eighty thousand euros) to Cem Pı nar ;

iii. application no. 36263/02, EUR 80 ,000 ( eighty thousand euros) to Cemil Ö zdemir;

iv. application no. 36272/02, EUR 40,000 (forty thousand euros) to Suphi Delioğulları ;

v . application no. 36277/02, EUR 25 , 000 (twenty-five thousand euros) to Mehmet AsfuroÄŸ lu;

vi. application no. 36319/02, EUR 80 ,000 ( eighty thousand euros) , jointly , to Hülya Matkap and Seher Ekmekç i ;

vi i. application no. 36339/02, EUR 70 ,000 (s even ty thousand euros) to Åžefik BaÄŸdadioÄŸ lu ;

viii. application no. 38616/02, EUR 25 ,000 (twenty -five thousand euros) , jointly , to Edip Hadımoğulları and Kerim Berrak ;

(b) within the same three months period, the respondent State is to pay the applicants, for each case in question, EUR 500 (five hundred euros), total ling EUR 4,000 (four thousand euros) for costs and expenses ; if there is more than one applicant in a case, the sum of EUR 500 should be paid jointly to such applicants;

(c) plus any tax that may be chargeable to these amounts;

(d) that these sums are to be converted into new Turkish liras at the rate applicable on the date of settlement;

(e) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7 . Dismisses the remainder of the applicants ' claim s for just satisfaction.

Done in English, and notified in writing on 27 March 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens Registrar President

[1] . Rectified on 2 July 2007. The applicants’ name mistakenly read as “ Afsuroğlu ”.