Information Note on the Court’s case-law 246

December 2020

Çiftçiler Joint Stock Company and Göksun v. Turkey (dec.) - 62323/09 and 64965/09

Decision 24.11.2020 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Refusal to compensate the former owners or to reassign to them land that had been expropriated and subsequently privatised, after 30 years of use in the public intere st: inadmissible

Facts – In the 1970s plots of land belonging to the applicants were expropriated with a view to constructing public facilities. Compensation corresponding to the value of the properties was paid to the applicants. Subsequently, in the 2000 s, the authorities decided to privatise an area of public land which included part of the area which had previously belonged to the applicants. The amount raised from the sale was allocated to the construction of new road-transport infrastructure.

The appl icants brought several actions, seeking to have the land sold back to them on favourable terms and/or to be awarded the profit made through the sale. The court dismissed these actions on the grounds that the domestic law did not require the authorities to return expropriated property which, after having been used in line with the designated purpose of the expropriation, was no longer being used for that purpose.

Law – Article 1 of Protocol No. 1: The applicants based their claims on two arguments which, whi le apparently similar, raised clearly distinct legal questions.

The first argument concerned the proportionality of an expropriation where, for a long period, the expropriated property is not used for the public-interest purpose that had provided the legal basis for the deprivation of property.

The Court had already indicated in its case-law, including the judgments in Motais de Narbonne v. France , 48161/99 , 2 July 2002, and Beneficio Cappella Paolin i v. San Marino , 40786/98, 13 July 2004, Information Note 66 , that a violation of Article 1 of Protocol No. 1 would occur where a considerable period of time elapsed between the adoption of an expropriation order in respect of property and the effective completion of the public-interest project justifying the expro priation. In such a case, the expropriation could have the effect of depriving the individual concerned of the added value generated by the property in question. Although this specific deprivation was not based on a legitimate public-interest ground, the i ndividual concerned could be made to bear an additional burden, incompatible with Article 1 of Protocol No. 1. In the above-mentioned cases the expropriated plots of land had never been used, although a relatively long period of time had passed, and it was this failure to use the land which had had the effect of depriving the former owners of the added value which the property could have generated. The applicants had received compensation corresponding to the value of their property at the time of the expro priation, but lower than the amount they might have received had the expropriations occurred at the point that the amenities in question were actually constructed.

This scenario was totally absent in the present case. Construction of the planned public services had begun on the plots of land in question immediately after their expropriation. The applicants had thus obtained compensation corresponding to the value of their property at the time that it had been effectively assigned for the public-interest project that had served as the basis for their expropriation, with the result that there was no indication of any loss of added value between the time of the expropria tion and that of its designation, as those two points of time were the same. The applicants could not therefore be said to have borne a burden that had upset the fair balance.

The fact that the property had ceased to be used for the intended purpose after thirty years of use had no bearing on this matter. Article 1 of Protocol No. 1 did not provide for an obligation to return property or provide compensation to former owners where property that had been lawfully expropriated was no longer used in the public interest after having been so used for a certain time. This was all the more so where the period of use had been as long as it was in the present case.

However, although the Convention did not impose such an obligation, the national authorities remained f ree to provide in their domestic regulation for a right to restoration of expropriated property and to attach to it those conditions that they considered appropriate. Such a right could, in certain circumstances, amount to a proprietary interest protected by the Convention. Indeed, the applicants’ second argument consisted precisely in stating that the domestic law had granted them such a right, which, in their view, amounted to a “legitimate expectation” within the meaning of the Kopecký v. Slovakia case-l aw ([GC], 44912/98, 28 September 2004, Information note 67 ).

At the relevant time, although the expropriation code provided for a procedure to return expropriated property that was no longer assigned to the designated use, the settled case-law did not identify this as an obligation on the expropriating authority, but merely a possibility.

Although the case-law may have fluctuated, the Court could not conclude that there existed a legitimate expectati on, recognition of which would have required a consistent case-law establishing the principle of an obligation to return property. In this connection, a legitimate expectation had to have a basis in established case-law, and no legitimate expectation could be said to arise where there was a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions were subsequently rejected by the national courts.

In those circumstances, in the context of their requests for res titution or for compensation, the applicants had not had a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. The guarantees of that provision did not therefore apply to the present case.

Conclusion : inadmissible (incompa tible ratione materiae ).

(See also Malhous v. the Czech Republic (dec.) [GC], 33071/96, 13 December 2000, Information note 26 , and Radomilja and Others v. Croatia [GC], 37685/10 and 22768/12, 20 Marc h 2018, Information note 206 )

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