Information Note on the Court’s case-law 202

December 2016

Kutlu and Others v. Turkey - 51861/11

Judgment 13.12.2016 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Payment of partial compensation rather than full expropriation value for land encumbered by material and legal restrictions owing to nearby construction of hydraulic dam: violation

Facts – The applicants were the owners of several plots of land near which a hydraulic dam had been built. Two of the plots were situated within the maximum protection zone around the dam, while the third was within the inner protection zone. This proximity entailed a number of rest rictions, both physical (difficult access, destruction of telephone and electricity wires, etc.) and legal (ban on construction work and limitations on agricultural activities).

With a view to obtaining compensation for the damage sustained, the applicants brought several court actions requesting that their land be expropriated. The courts refused to make expropriation orders but awarded financial compensation.

Law – Article 1 of Protocol No. 1

(a) Plots nos. 84/72 and 84/76 – Use of the plots had been aff ected by extremely stringent physical and legal restrictions: the plots could only be accessed by non-motorised vessels, no construction was permitted and agriculture was prohibited.

The law imposed expropriation where a plot of land in the neighbourhood o f a dam was “no longer usable”. The regulations, to which the law referred, specified that plots situated within the maximum protection zone around a reserve of drinking water “shall be expropriated”.  In view of the use of the verb “to be” and not of the modal verb “may”, this text did not grant any discretionary margin of appreciation to the authorities, who did not have the freedom to choose between expropriation and the payment of a lower rate of compensation. On the contrary, the regulations removed al l discretionary power from the authorities by obliging them to acquire the land, and thus granted the owners of plots situated within the maximum protection zone a genuine right of abandonment, that is, a “right to be expropriated”.

This right of abandonment, provided for in the domestic regulations, amounted to a “proprietary interest” for the purposes of Article 1 of Protocol No. 1. The right to be expropriated and to obtain the payment of compensation corresponding to the value of the plots of land constituted a “possession”.

By refusing to expropriate the plots of land concerned and opting for the payment of compensation for the damage arising from the restrictions on the use of the possessions, the authorities had infringed this p roprietary interest, conferred by domestic law and protected by the Convention.

Such an infringement could not be considered compatible with the requirements of Article 1 of Protocol No. 1, given not only that it had no legal basis, but also that there was no real justification for it. The courts had given insufficient reasons for their decision to order the payment of compensation corresponding to the depreciation in the value of the land, rather than to give effect to the applicant’s right of abandonment by making an expropriation order and awarding compensation corresponding to the value of the land. In this respect, it had to be observed that the domestic courts had not taken a position on the above-mentioned regulation. Nor had the Government put forwar d any good reason for this interference.

Conclusion : violation (six votes to one).

(b) Plot no. 81/44 – This plot, which was situated in the inner protection zone, was subject to a number of restrictions that were intended to protect water quality in the dam. Thus, all construction was prohibited on it. In addition, agricultural activities were authorised only with the approval of the relevant ministry and subject to the condition that no artificial fertiliser or other chemical product was used.

The national regulations did not lay down a “right to be expropriated” for this plot.

The law linked the require ment to expropriate land situated in the proximity of a dam to the condition that they were “no longer usable”. However, the national courts had never held that the property in question had become unusable within the meaning of that provision. It could not therefore be stated that in the present case the applicants had a right to be expropriated under that Article. As to the regulations, these did not stipulate that the restrictions affecting land located in an inner protection zone automatically rendered t he land unusable and did not otherwise provide for a requirement to expropriate. Consequently, in the absence of a “right to be expropriated” recognised under domestic law and likely to represent a proprietary interest protected by the Convention and thus a “possession, the payment of compensation corresponding to the damage arising from the regulatory restrictions was appropriate in order to strike a fair balance between the applicants’ rights and those of society.

The court-appointed expert had estimated the depreciation in the value of the land resulting from the restrictions on its use at 40%. Yet the court had set the compensation at 25% of the value of the possessions with a mere reference to the criteria that had to be taken into account. This could n ot be considered as sufficient reasoning, given that the court had not indicated why and how the application of those criteria ought to result in the depreciation value being limited to 25%.

The manner in which the amount of the compensation had been deter mined did not enable the Court to conclude that it was reasonably related to the damage sustained.

Without requiring a detailed answer to each and every argument raised by the claimant, the obligation on the courts to adequately state the reasons on which they based their decisions implied that the injured party could expect his or her principal claims to be dealt with attentively and carefully.

In consequence, there was nothing to support the conclusion that the necessary fair balance between the general i nterest and the requirements of the protection of the applicants’ rights had been struck.

Conclusion : violation (unanimously).

Article 41: EUR 455,000 in respect of pecuniary damage, jointly to all of the applicants; EUR 1,500 each in respect of non-pecuni ary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes