Protection of property (Article 1 of Protocol No. 1 to the Convention)
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional provisions 41. Article 74 of the Turkish Constitution of 1924 reads as follows: “ No one shall be deprived of his possessions save in the public interest as established by a procedure provided for by law and subject to prior compensation. The methods for the assessment and payment of compensation for the expropriation of land and forests, for the purposes of enabling farmers to own land and of nationalising forests, shall be determined by special statutes. ” 42. The relevant provisions of the Turkish Constitution of 1982 read as follows: THE LAW 68. The applicants submitted that the annulment of their document of title and its re-registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1. ... II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 83. The applicants submitted that the annulment of their document of title and its re- registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1, which reads as follows: “ 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 84. The applicants stated that the domestic courts had decided to register land for which they had held a document of title for at least three generations as belonging to the Treasury. They pointed out that the land had been purchased in 1913 by Hurşit Güneş, to whom the competent authorities had issued a document of title in due form; their ascendants had then inherited the land, which on 9 July 1960 had been registered in their names in the land registers. Furthermore, they submitted that the surveys classifying the land as part of the forest estate did not reflect reality, since a military holiday camp, comprising, inter alia, houses, a tennis court, a picnic area, a kitchen, various storerooms and accommodation for private use, had been built there in the 19 70s even though the applicants had not transferred the land to third parties and had not been notified of any expropriation or other measure depriving them of their property in the public interest. In the applicants ’ submission, the annulment of their document of title and the registration of the land as belonging to the Treasury, without payment of any compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions. 2. The Government 85. The Government maintained that the applicants and/or their ascendants had held a document of title over land which was part of the public forest estate, whereas according to the provisions of the Constitution, land of this kind could not be privately owned. They pointed out that Article 1 of Protocol No. 1 allowed the State to limit the right of property in the public interest. In this context, the State could also permanently and fully deprive a person of title in the context of nationalisation or expropriation. In this particular case, since plot no. 135 was located within the public forest estate, pursuant to the provisions of the Constitution, the property at issue could not be privately owned. The applicants ’ document of title had therefore had no legal value, all the more so as they could not have had any legitimate expectations. Furthermore, the State could legitimately intervene to protect the environment and forest land and, in this regard, it had a wide margin of appreciation. B. The Court ’ s assessment 86. The Court observes that according to its case-law, Article 1 of Protocol No. 1, which in substance guarantees the right of property, comprises three distinct rules (see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98): the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated 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). 87. In determining whether there has been a deprivation of possessions within the second rule of Article 1 of Protocol No. 1, 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, 23 September 1982, §§ 63 and 69 ‑ 74, Series A no. 52; Vasilescu v. Romania, 22 May 1998, §§ 39 ‑ 41, Reports of Judgments and Decisions 1998 ‑ III; and N.A. and Others v. Turkey, no. 37451/97, §§ 37 and 39, ECHR 2005 ‑ X ). 88. The Court notes that in the present case there has been interference with the applicants ’ right to the peaceful enjoyment of their possessions, which amounts to a “ deprivation ” of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 ( see, mutatis mutandis, Brumărescu, cited above, § 77). 89. The Court notes firstly that the applicants ’ good faith in taking possession of the property, as regards the part acquired in 1911, is not contested. [7] It is not in dispute that until their document of title was declared void and ownership was transferred to the Treasury, the applicants had been the rightful owners of the property, with all the attendant consequences under domestic law, and that they had further enjoyed “ legal certainty ” as to the validity of the title entered in the land register, which constitutes undisputable evidence of ownership. 90. The Court further observes that the applicants were deprived of their property by a court decision. Despite the applicants ’ objections as to the nature of the land, the domestic courts eventually declared their document of title void pursuant to the provisions of the Constitution, relying on surveys which included the land as part of the forest estate. Having regard to the reasons given by the domestic courts, the Court considers that the purpose of depriving the applicants of their property, namely to protect nature and forests, falls within the scope of public interest within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Lazaridi v. Greece, no. 31282/04, § 34, 13 July 2006, and Ansay v. Turkey (dec .), no. 49908/99, 2 March 2006). It notes in this regard that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such ( see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003 ‑ VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v. Sweden ( no. 1), 18 February 1991, § 48, Series A no. 192 ). The Court notes that it has on various occasions dealt with questions relating to environmental protection and stressed the importance of this issue (see, for example, Taşkın and Others v. Turkey, no. 46117/99, ECHR 2004 ‑ X; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004 ‑ X; Fadeyeva v. Russia, no. 55723/00, ECHR 2005 ‑ IV; and Giacomelli v. Italy, no. 59909/00, ECHR 2006 ‑ XII ). The protection of nature and forests, and, more generally, the environment, is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard ( see Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007 ‑ V ). 91. However, in the case of deprivation of property, compensation terms under the relevant domestic legislation are material to the assessment of whether the contested measure observes the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants. The Court has already held in this connection that the taking of property without payment of an amount reasonably related to its value normally constitutes 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; The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301 ‑ A; and N.A. and Others v. Turkey, cited above, § 41 ). In the instant case, the applicants received no compensation for the transfer of their property to the Treasury pursuant to Article 169 § 2 of the Constitution. The Court notes that the Government have not relied on any exceptional circumstance in order to justify the total lack of compensation. 92. Consequently, the Court considers that the failure to award the applicants any compensation upsets, to their detriment, the fair balance that should be struck between the demands of the general interest of the community and the requirement of the protection of individual rights. 93. There has therefore been a violation of Article 1 of Protocol No. 1. ...
The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. Recalling in particular that the protection of nature and forests, and of the environment in general, was a matter of considerable and constant concern to public opinion and consequently to the public authorities, and that economic imperatives and even certain fundamental rights, including the right of property, should not be placed before considerations relating to environmental protection, in particular when there was legislation on the subject, the Court also noted, however, that the taking of property without payment of an amount reasonably related to its value normally constituted a disproportionate interference, and a total lack of compensation could be considered justifiable only in exceptional circumstances. In the present case, the applicants had not received any compensation for the transfer of their property to the Treasury. No exceptional circumstance had further been raised by the Turkish Government in order to justify the lack of compensation. The Court therefore found that the failure to award the applicants any compensation had upset, to their detriment, the fair balance that had to be struck between the demands of the general interest of the community and the requirements of the protection of individual rights.