Information Note on the Court’s case-law 201

November 2016

Keriman Tekin and Others v. Turkey - 22035/10

Judgment 15.11.2016 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Possessions

Refusal to grant compensation for accidental public-works damage to building erected without permission: violation

Facts – The applicants, who owned a plot of land in a n area of ground instability, built a house on it in 1997 without applying for planning permission. In 2004 excavation work (in preparation for the construction of a school on a neighbouring plot of land) triggered a landslide which damaged the house to th e extent that it was rendered uninhabitable.

The applicants brought an action for damages against the authorities which had ordered the construction work. Several expert reports were drawn up; they concluded  that there had been a combination of technical factors at play, and held that the structural faults in the applicants’ home had also contributed to the damage by 15-20%. However, the courts refused to grant even partial compensation, on the grounds that: (i) the applicants had never submitted a request under the law for the regularisation of illegal dwellings; and (ii) in any event, their property could not be rendered compliant, for reasons based on both the current planning regulations and the specific technical features of the building.

Law – Article 1 of Protocol No. 1

(a) Existence of a “possession” – The applicants’ house had been built on a plot of land that belonged to them, but without planning permission, in breach of planning regulations. Nor did they have authorisation to use it for habitati on.

However, no action had ever been taken against the applicants on account of this failure to comply with the regulations, and they had enjoyed their possession in a completely normal manner between the year that it was built and the year of the incident. Th ere was nothing to indicate that the authorities had ever contemplated exercising their legal powers to order the demolition of the building in question.

Furthermore, the applicants’ claim that no building in the administrative area in question had receiv ed planning permission had never been contradicted.

Lastly, the house was entered in the land register and was expressly mentioned, with no specific comments, in the title deed issued to the applicants.

Having regard to those circumstances, the applicants had a proprietary interest in peaceful enjoyment of their house, an interest that was of a sufficient nature to constitute a “possession”. Article 1 of Protocol No. 1 was thus applicable.

(b) Enjoyment of possessions – What was at stake here was solely t he lack of compensation in respect of the physical damage caused to the applicants’ house: their rights to the land on which the house was situated were not in dispute. As the interference with the applicants’ possession thus consisted solely in their inab ility to use their house, which was due to be demolished, the contested interference fell to be examined in the light of the “general” rule contained in Article 1 of Protocol No. 1.

The applicants’ house had been built at a time when no urban plan had yet been adopted by the municipal authorities, and they had used it for several years.

Admittedly, the house had been constructed without the requisite planning permission, and under dom estic law the authorities were entitled to order its demolition as a means of punishing this non-compliance with the urban-planning regulations.

However, it had to be acknowledged that the contested damage had been caused by chance, and that the authoritie s had never issued a decision ordering that the house be demolished (a point which distinguished the present case from the cases of TiryakioÄŸlu v. Turkey (dec.), 24404/02 , 13 May 2008, and Hamer v. Belgium , 21861/03, 27 November 2007, Information note 102 ). On the contrary, the question of planning permission had been raised for the first time by the authorities during the procedure with regard to the compensation claim, in order to avoid their own liability.

The Court was not convinced that the interference in question arose from a concern on the part of the authorities to apply the regulations in force: it seemed instead that the regulations h ad served as a pretext, for purely financial purposes. There was nothing to show that the Turkish authorities had had a coherent policy in place to combat illegal dwellings, or that they had decided to have demolished all the dwellings in a similar situati on to that of the applicants, at least in the district in question. Neither the authorities, nor the Government before the Court, had contested the claim that almost none of the buildings in the district in question had been granted planning permission. In deed, the legislative practice known as “urban amnesties” appeared to attest to the scale of the phenomenon of unauthorised dwellings in the respondent State, the authorities’ tolerance towards it and their wish to regularise the legal situation of the bui ldings concerned.

Likewise, the reasons given for the refusal to compensate the applicants were not based on environmental considerations.

In those circumstances, the authorities’ refusal to provide redress for the material damage sustained had placed an individual and excessive burden on the applicants, which had upset the fair balance between their interests and those of the community.

Conclusion : violation (unanimously)

Article 41: EUR 5,000 in respect of non-pecuniary damage; EUR 11,000 in respect of p ecuniary damage.

(See also Öneryıldız v. Turkey [GC], 48939/99, 30 November 2004, Information note 69 )

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

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