Resolution CM/ ResDH (2011)279 [1]

Execution of the judgments of the European Court of Human Rights

in three cases against Turkey concerning lack of compensation for the loss of title to property

Özcan Gani (Application No. 11189/04), judgment of 04/11/2008, final on 04/02/2009

EfendioÄŸlu (Application No. 3869/04), judgment of 27/10/2009, final on 27/01/2010

KahyaoÄŸlu (Application No. 53007/99+), judgment of 20/10/2009, final on 20/01/2010

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 lack of compensation for the loss of title to property under Article 38 of the Law on Expropriation (violations of Article 1 of P rotocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention 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 applicants 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 (2011)279

Information on the measures taken to comply with the judgments in three cases against Turkey concerning lack of compensation for the loss of title to property

Introductory case summary

These cases concern the violation of the applicants ’ right to the peaceful enjoyment of their possessions in that they were unable to obtain compensation for the loss of title to their property under Article 38 of the Law on Expropriation of 04/11/1983, in force at the material time. This article provided that claims for the restitution of property occupied for purposes of public use lapse 20 years after occupation.

The European Court noted in particular that once Article 38 had entered into force, the applicants could claim neither restitution nor compensation since the time-limit fixed by Article 38 had expired (violation of Article 1 of P rotocol No. 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Özcan Gani (11189/04)

300 000 EUR

---

---

300 000 EUR

Paid on 04/05/2009

EfendioÄŸlu (3869/04)

350 000 EUR

---

560 EUR

350 560 EUR

Paid on 29/04/2010

KahyaoÄŸlu (53007/99+)

1 330 000 EUR

---

6 000 EUR

1 336 000 EUR

Paid on 27/04/2010

b) Individual measures

In view of the just satisfaction awarded by the Court in respect of pecuniary damage suffered by the applicants, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

These cases present similarities to that of I.R.S. and others against Turkey closed by final Resolution CM/ ResDH ( 2 007)98 , in which the Turkish authorities already adopted the necessary general measures: in a decision of April 2003 the Turkish Constitutional Court declared Article 38 of the Law on Expropriation unconstitutional on the grounds that its application was not in conformity with the principle of the rule of law and that it violated the requirements of the Convention. As a result this provision is null and void.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Turkey have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies