Protection of property (Article 1 of Protocol No. 1 to the Convention)
II. RELEVANT DOMESTIC LAW 30. Article 43 of the Constitution provides: “The coasts are the property of the State and fall within its jurisdiction. The public interest shall prevail in the use of seashores, lake shores and riverbanks and of the coastal strips situated by seas and lakes. The law shall determine the width of coastal strips according to their use, together with the possibilities and conditions for such use by individuals.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 31. The applicants complained that they had not received compensation for the loss they had sustained as a result of the demolition of their partially built hotel and the cancellation of the entry of their property in the land register. They relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties'submissions 1. The applicants 32. The applicants submitted a copy of the land register produced by the relevant government department on 25 January 1958, indicating that the land in question had indeed been registered in their ascendant's name. They argued that the register could not be held to be unlawful since the appropriate authorities had not contested the entry in question within the statutory period. In that connection, they pointed out that they had continued to pay all the relevant taxes and duties on the property although the government had had the opportunity to contest its registration in their ascendant's name. They added that they had obtained all the necessary permits and grants at both local and national level to build a hotel complex there, in particular a building permit issued on 17 June 1986 by Alanya District Council. Although they had brought an action in the relevant courts, they complained that they had not received any compensation for the loss they had sustained on account of the invalidation of their title to the property and the destruction of the work already carried out. They had been deprived of their possession and the building site for the hotel complex had been demolished at their own expense, yet they had not obtained fair compensation for the loss sustained. 2. The Government 33. The Government explained that the case did not concern the expropriation or confiscation of property by the State. As the applicants had accepted, it involved ascertaining who could be regarded as the owner of a plot of coastal land which had been erroneously registered in the applicants'ascendant's name on 25 January 1958. They could not see any possible justification for the title claimed by the applicants'ascendant, especially as the State could not be held liable for such an error. The applicants had inherited the plot of land, measuring 26,645 sq. m, on 6 July 1984. The judicial proceedings in the instant case had begun after the publication of an article in a local newspaper criticising the building of a hotel on the beach. Taking into account the photographs of the land, the expert reports and the relevant provisions of the laws in force, the national courts had found that the property in issue was part of the coastline and that the coastline could not be owned by private individuals. The applicants'title to the property had been forfeited to the authorities and the hotel had been demolished. The Alanya District Court had dismissed the applicants'claim for damages in respect of the demolition of the hotel. 34. The Government submitted that the domestic authorities were empowered to assess the rules on the use of property in accordance with the public interest and the respondent State's margin of appreciation. The proceedings for the cancellation of the registration could equally well have been brought by any inhabitant of the town of Alanya wishing to complain that it was impossible to use the beach, a public area which was open to all. 35. With regard to the tourist investment certificate and the investment incentive certificate, issued by the Ministry of Culture and Tourism and the State Planning Organisation respectively, the Government explained that they had been awarded on the basis of the personal declarations submitted by the applicants, which were deemed to be valid in the absence of proof to the contrary. The relevant authorities did not check the accuracy of such declarations on their own initiative. B. The Court's assessment 36. The Court observes that, as it has previously held, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 -V ). 37. The Court reiterates that in determining whether there has been a deprivation of possessions within the second “rule”, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999 ‑ VII; Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 24-2 8, § § 63 and 69 ‑ 74; and Vasilescu v. Romania, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1075-76, §§ 39-41 ). 38. In the present case there was an interference with the applicants'right to the peaceful enjoyment of their possessions, amounting to a “deprivation” of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. 39. The Court notes, firstly, that it was not disputed that the applicants had acquired the property in question in good faith. Furthermore, until the date on which the registration of the property in the land register was forfeited to the State, they were the owners of the property, having inherited it, and had paid the appropriate taxes and duties on it. They had peaceful enjoyment of their possession and had begun to build a hotel complex on the land as the lawful owners, after obtaining a building permit for that purpose. 40. The Court further notes that the applicants were deprived of their possession by a judicial decision (see paragraphs 21 and 27 above) which it does not find in any way arbitrary. Having regard to the reasons given by the national courts, it considers that it is beyond dispute that the applicants were deprived of their property “in the public interest”. It observes that it was common ground that the land in issue was on the seashore and formed part of the beach, a public area open to all ( see paragraph 21 above). Indeed, that aspect was emphasised by the Alanya District Court (see paragraph 27 above). The deprivation of property therefore pursued a legitimate aim. 41. Compensation terms under the domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005 -VI; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71). In the instant case the applicants did not receive any compensation for the transfer of their property to the Treasury or for the demolition of the hotel, despite having brought an action for damages in the Turkish courts. The Court notes that the Government did not cite any exceptional circumstances to justify the total lack of compensation. 42. The Court accordingly considers that the failure to award any compensation to the applicants upset, to their detriment, the fair balance that has to be struck between the protection of property and the requirements of the general interest. 43. There has therefore been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 45. The applicants claimed 15, 987,000,000 Turkish liras (TRL) for pecuniary damage, corresponding to the value of the land, and TRL 5, 388,000 to reimburse the property tax they had paid for the period from 1986 to 1990. They relied in that connection on the expert report produced to the Alanya District Court. They submitted that the value of their investment in the property in issue amounted to TRL 1, 484,000,000. They further sought the reimbursement of TRL 4, 048,000,000,000 in respect of the duties they had paid and TRL 2, 260,000,000,000 in respect of interest. As regards the demolition of the hotel, they claimed TRL 4, 048,000,000,000 in respect of social security contributions and TRL 2, 260,000,000,000 for taxes and duties. The applicants also claimed 10,000,000 United States dollars (USD) for non-pecuniary damage. 46. The Government asked the Court to dismiss the applicants'claim for compensation. They submitted, in the alternative, that it was speculative as regards their alleged loss, seeing that the property in question was devoid of any market value since it could not be sold to private individuals. 47. The applicants sought USD 10,000 for costs and expenses. They submitted a copy of the legal assistance agreement they had signed with their lawyer and left the matter to the Court's discretion. 48. The Government contended that the agreement bound only the applicants and their lawyer and was not designed to guarantee the repayment of the expenses incurred by them on that account. They asked the Court to apply the Istanbul Bar's scale of fees, which laid down the minimum and maximum rates for cases before the Strasbourg institutions. 49. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicants.
The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. It found that the applicants had acquired the disputed plot of land in good faith. Until the title was annulled in favour of the State, they had been the owners and had paid taxes in respect of the property. They had enjoyed peaceful possession of their property and had begun to have a hotel complex built on the land, as lawful owners, after obtaining a building permit for that purpose. But they were subsequently deprived of their property by a judicial decision, which the Court did not find in any way arbitrary. The deprivation of ownership of the land, which was located on the shoreline and was thus part of the beach, a public area open to all, fulfilled a legitimate purpose. However, the applicants had not received any compensation for the transfer of their property to the Public Treasury or for the demolition of the hotel, notwithstanding the proceedings they had brought to that end before the Turkish courts, and without any justification by the Turkish Government for the total lack of compensation.