PARTLY DISSENTING OPINION OF JUDGE MULARONI

(Translation)

1. I fully agree with the reasoning and conclusions of the majority regarding Article 2 of the Convention in both its substantive and its procedural aspects.

2. However, I consider that Article 1 of Protocol No. 1 is not applicable in the present case. This provision guarantees the right of property. In its case-law, the Court has clarified the concept of possessions, which may cover both “existing possessions” and assets, including claims, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a possession within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 23, § 50; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII; and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX).

It was not disputed before the Court that the applicant’s dwelling had been erected in breach of Turkish town-planning regulations and had not conformed to the relevant technical standards, or that the land it had occupied belonged to the Treasury (see paragraph 125 of the judgment). The applicant was unable to prove that he had a property right over the land in question or that he could legitimately have applied to have the property transferred to him under section 21 of Law no. 775 of 20 July 1966 or the successive amendments to that law.

The majority acknowledge that “the Court cannot conclude that the applicant’s hope of having the land in issue transferred to him one day constituted a claim of a kind that was sufficiently established to be enforceable in the courts, and hence a distinct ‘possession’ within the meaning of the Court’s case-law” (see paragraph 126 of the judgment in fine ). However, instead of drawing the appropriate conclusions from this reasoning and finding that Article 1 of Protocol No. 1 was not applicable, they adopted a new admissibility criterion for this Article: the relevant authorities’ tolerance of the applicant’s actions for almost five years, leading to the conclusion that those authorities acknowledged de facto that the applicant and his close relatives had a proprietary interest in their dwelling and movable goods (see paragraph 127), which was of a sufficient nature and sufficiently recognised to constitute a substantive interest and hence a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1 (see paragraph 129).

I am unable to agree with this reasoning.

In my opinion, neither implicit tolerance nor other humanitarian considerations can suffice to legitimise the applicant’s action under Article 1 of Protocol No. 1. Nor should these factors be used by the Court to justify a conclusion which is tantamount to removing applicants (Mr Öneryıldız in this case, but also any future applicants who have erected buildings illegally) from the ambit of national town-planning and building laws and, to an extent, indirectly condoning the spread of these illegal dwellings.

I consider that the majority’s conclusion that Article 1 of Protocol No. 1 is applicable might have paradoxical effects. I am thinking, for example, of the splendid villas and hotels built illegally on the coast or elsewhere which, under national legislation, cannot be acquired by adverse possession; will the mere fact that the relevant authorities have tolerated such buildings for five years now be sufficient to maintain that those who built them in flagrant breach of the law have an arguable claim under Article 1 of Protocol No. 1? Such a conclusion would make it much more difficult for the authorities (at either national or local level) to take any action to ensure compliance with town-planning laws and regulations where, for instance, they have inherited an illegal situation as a result of a period of administration by less scrupulous authorities.

Lastly, I find it hard to accept that where buildings have been erected in breach of town-planning regulations, States henceforth have a positive obligation to protect a right of property that has never been recognised in domestic law and should not be, since in many cases it could be exercised to the detriment of the rights of others and the general interest.

I have therefore concluded that Article 1 of Protocol No. 1 is not applicable and, consequently, has not been breached.

I should add that even if I had concluded that Article 1 of Protocol No. 1 was applicable – which, I repeat, I did not – I would have considered, unlike the majority (see paragraph 137 of the judgment), that the applicant could no longer claim to be a victim. In my view, the allocation of subsidised housing on very favourable terms may be regarded as an acknowledgment in substance of a violation of Article 1 of Protocol No. 1, such a measure being probably the best form of redress conceivable in the present case.

3. Having regard to the circumstances of the case and to the reasoning which led the Court to find a violation of Article 2 of the Convention in its procedural aspect, I consider that it was not necessary to examine the case under Article 13 as regards the complaint under the substantive head of Article 2.

4. In view of my conclusions under Article 1 of Protocol No. 1, I consider that there was no violation of Article 13 as regards the complaint under Article 1 of Protocol No. 1.