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CASE OF N.A. AND OTHERS AND 22 OTHER CASES AGAINST TURKEY

Doc ref: 37451/97, 1220/07, 19467/07, 9738/06, 16858/05, 43498/04, 23249/04, 20606/04, 18367/04, 1318/04, 291... • ECHR ID: 001-111928

Document date: June 6, 2012

Inbound citations: 82
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Cited paragraphs: 3
•
Outbound citations: 0

CASE OF N.A. AND OTHERS AND 22 OTHER CASES AGAINST TURKEY

Doc ref: 37451/97, 1220/07, 19467/07, 9738/06, 16858/05, 43498/04, 23249/04, 20606/04, 18367/04, 1318/04, 291... • ECHR ID: 001-111928

Document date: June 6, 2012

Cited paragraphs only

Resolution CM/ ResDH (2012) 105 [1]

Execution of the judgments of the European Court of Human Rights

23 cases against Turkey

(see Appendix for the list of cases)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the applicants ’ right to peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent State paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2012) 105

Information on the measures taken to comply with the judgments

in 23 cases against Turkey

Introductory case summary

These cases concern violation of the applicants ’ right to peaceful enjoyment of their possessions. According to the Treasury, property belonging to the applicants was part of the coastline and therefore could not be owned by private individuals by virtue of the relevant legislation. Consequently, the entries of the properties in the land register were cancelled by domestic court decision. However, no compensation was awarded to the applicants on account of the damages suffered. The Court found that deprivation of the applicants ’ right to property without any form of compensation amounted to a violation of Article 1 of Protocol No. 1 to the Convention.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

N.A. and others (37451/97)

550 000 EUR

5 000 EUR

555 000 EUR

Paid on 22/08/2007

Kalyoncu (41220/07)

10 000 EUR

3 500 EUR

13 500 EUR

Paid on 06/10/2009

KarakuÅŸ (19467/07)

120 000 EUR

2 000 EUR

122 000 EUR

Paid on 14/12/2009

Mustafa Koçer (9738/06)

TerzioÄŸlu and others (16858/05)

274 000 EUR

3 260 EUR

277 260 EUR

Paid on 07/09/2009

FatihoÄŸlu and Ugutmen ( 43498/04 )

Andıçoğlu (23249/04)

18 714 EUR

Paid on 28/05/2009

Berber (20606/04)

50 300 EUR

Paid on 07/09/2009

Taci and EroÄŸlu (18367/04)

25 000 EUR

500 EUR

25 500 EUR

Paid on 08/11/2007

Kutluk and others (1318/04)

15 500 EUR

Paid on 26/11/2008

Tozkoparan (29128/03)

290 000 EUR

Paid on 06/03/2008

Yurtöven (21850/03)

20 000 EUR

500 EUR

20 500 EUR

Paid on 15/01/2008

Katayıfçı (16480/03)

120 000 EUR

500 EUR

120 500 EUR

Paid on 25/12/2007

Mogul (40217/02)

18 000 EUR

2 500 EUR

20 500 EUR

Paid on 02/07/2007

Özdemir (36531/02)

35 000 EUR

500 EUR

35 500 EUR

Paid on 06/11/2007

AsfuroÄŸlu (36166/02)

440 000 EUR

4000 EUR

444 000 EUR

Paid on 08/10/2007

Aslan and Özsoy (35973/02)

150 000 EUR

5 000 EUR

155 000 EUR

Paid on 27/07/2007

Abacı (33431/02)

40 000 EUR

693 EUR

40 693 EUR

Paid on 03/04/2009

Doğrusöz and Aslan (1262/02)

26 000 EUR

Paid on 23/01/2007

Tuncay (1250/02)

200 000 EUR

4 000 EUR

204 000 EUR

Paid on 22/08/2007

Uslu (43/02)

50 000 EUR

992 EUR

50 992 EUR

Paid on 18/11/2008

Gümüşoğulları (40/02)

90 000 EUR

1 200 EUR

91 200 EUR

Paid on 19/08/2008

Miçooğulları (75606/01)

15 000 EUR

380 EUR

15 380 EUR

Paid on 07/12/2007

b) Individual measures

In these cases, the Court awarded just satisfaction in respect of pecuniary damages suffered by the applicants. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The Court of Cassation has established new case-law according to which the State has an objective responsibility for keeping the records in the land register and the administration has to pay damages to those who sustain loss as a result of incorrect registration. A certain number of consequences arise from this new case-law of the Court of Cassation:

- Objective responsibility of the State : In a judgment of 18/09/2008 (E. 2007/14851, K. 2008/10543), the Court of Cassation considered that the responsibility enshrined in Article 1007 of the Civil Code ("The State is responsible for all damages arising out of the administration of the land register"), constituted an objective responsibility which did not depend on the existence of a fault on behalf of the authorities. In this particular case, the first-instance courts had cancelled the plaintiff ’ s title deeds, considering that the plots of land were located on the coastline, despite the fact that there was no indication on this point in the land register and the plaintiff had bought this land relying on the information in the register. The Court of Cassation quashed the decision rendered by the first-instance court, considering that it was necessary to award compensation to the plaintiff by relying on the criteria of objective responsibility of the State as enshrined in Article 1007 of the Turkish Civil Code. The same principle was reiterated by the Court of Cassation in its judgments of 29/11/2007(E. 2007/1940, K. 15047), 03/04/2008 (E. 2007/517, K. 2008/177) and 25/11/2008 (E. 2008/2501, K. 2008/14587).

- The good faith of the buyer : In its judgment of 03/04/2008 (E. 2007/517, K. 2008/117), the Court of Cassation considered that a plaintiff is presumed to have acted in good faith if he/she bought his/her property relying on the information in the land registers. This conclusion was repeated in other judgments of the Court of Cassation.

- Compensation : In a case concerning the cancellation of a plaintiff ’ s title deed on the ground that the land in question was situated on the coastline, the Court of Cassation ordered the administration to pay damages (equivalent to the rate of compensation for expropriation) to those who acquired property in good faith on the basis of the information in the land register. As for the amount of the compensation determined by the Court of Cassation, this should correspond to the exact value of the land in question.

- Assessment of the case-law of the European Court : In its judgment of 12/11/2007 (E. 2007/9403, K. 2007/10807), the Court of Cassation, recalling that the European Convention was a part of the Turkish law by virtue of the Article 90 of the Constitution, referred to the European Court ’ s judgment in Dogrusöz and Arslan (1262/02), and found that the interference with plaintiff ’ s right to property was not proportionate to the legitimate aim pursued because of the excessive burden imposed on him. Referring to Article 41 of the European Convention, the Court of Cassation awarded compensation to the plaintiff in that particular case (same principle, the judgments of 24/09/2008 -E. 2008/7459, K. 2008/9727-, 17/09/2009 -E. 2008/7386, K. 2008/9359).

- Publication and dissemination : The judgment of the European Court in the precedent case of N.A. and Others was translated into Turkish and was brought to the attention of the relevant authorities.

- Judgment of the European Court in the case of Hüseyin Ak and others (15523/04 and 15891/04): The European Court in this case considered that it appeared that anyone who was in the same situation as the applicants in these cases would be able to obtain compensation as a consequence of this case-law of the Court of Cassation. According to the European Court , the case-law of the Court of Cassation constituted sufficient basis to acquire compensation in similar cases.

III. Conclusions of the respondent State

The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .