BALCI proti Turecku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68545/01
by Remzi BALCI
against Turkey

The European Court of Human Rights (Third Section), sitting on 10 January 2008 as a Chamber composed of:

Boštjan M. Zupančič, President,
Corneliu Bîrsan,
Rıza Türmen,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Isabelle Berro-Lefèvre, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 28 July 1998,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Remzi Balcı, is a Turkish national who was born in 1934 and lives in Samsun. He had been granted legal aid and was represented before the Court by Mr C. Balcı, a lawyer practising in Samsun. The Turkish Government (“the Government”) did not designate an Agent for the Convention proceedings.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1971 the applicant bought a plot of arable land from a fellow villager. The seller had held the land in his possession for over thirty years without a title deed. The transaction took place unofficially and the parties did not execute a written sale agreement.

In 1974 the authorities conducted regional cadastral works in the area. As a result, the plot in question was registered in the land register as two separate parcels, numbered 370 and 590. Parcel no. 370 was registered in the name of the applicant as an arable field based on witness statements confirming that he had had taken it over from its previous possessor and had been exploiting it without interruption ever since. Parcel no. 590 however was classified as part of an adjacent forest. As the legislation permitted no private ownership of forest land, this parcel was registered in the name of the Treasury as a State property.

According to the applicant, he was uninformed about this registration and continued to cultivate not only parcel no. 370 but no. 590. He only became aware of the situation in 1983, when the authorities discovered the cultivation and fined him for illegal utilisation of State property.

On 26 December 1983 the applicant initiated civil proceedings before the Samsun Civil Court, requesting parcel no. 590 to be registered in his name. A court-appointed expert conducted an inspection and concluded that parcel no. 590 could not be characterised as forest land.

Agreeing with the expert, the Samsun Civil Court ruled in favour of the applicant on 8 December 1995. The court also established that the applicant had been holding the parcel in his uncontested and uninterrupted possession for long enough to entitle him to claim title under the applicable legislation. Accordingly, the court recognised him as the lawful owner of the parcel.

On 6 February 1997, however, the Court of Cassation quashed this judgment. It established that older land inventories proved that the disputed parcel was on the outer limits of a neighbouring forest. The court reasoned that many years of intensive cultivation must have removed the natural flora. Despite such a transformation, the court considered that the land should be considered as despoiled forest which had never belonged to the applicant. Accordingly, it directed the civil court to re-examine the facts of the case and pass judgment accordingly.

On 13 March 1998 the Samsun Civil Court adhered to this ruling. It held that the revision of the local plan served the general interest given that parcel no. 590 was a forest area and that the applicant had illegally occupied it by expanding the boundaries of his lawfully possessed land, i.e. plot no. 370.

On 8 July 1998 the Court of Cassation dismissed the applicant’s appeal.

On 29 May 2000 the Treasury sold the plot of land in question to a third party as an arable field.

B. Relevant domestic law

Article 713 of the Turkish Civil Code provides that, persons who hold in their possession an unregistered immovable property without interruption or legal challenge for a minimum period of 20 years, are entitled to request its registration in their names.

COMPLAINTS

The applicant complained that the domestic courts had deprived him of his property without payment of compensation in violation of Article 1 of the Protocol No. 1. He maintained that the domestic courts had favoured the Treasury’s claim that the disputed land was State property. He argued that, by overlooking the evidence in his favour (i.e., expert reports and witness testimonies), the courts had wrongly characterised parcel no. 590 as despoiled forest land belonging to the State. The applicant finally claimed that the very fact that the plot was ultimately sold to third parties as an arable land had proved that the expropriation was unjustified.

THE LAW

The applicant complained that he had been deprived of his land in circumstances that were incompatible with the requirements of Article 1 of Protocol No. 1 to the Convention, 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.”

The Government submitted that the application must be rejected for non‑compliance with the six-month rule since the final domestic decision had been given by the Court of Cassation on 8 July 1998 and that the applicant had lodged his application with the Court on 28 July 1998. They maintained, in the alternative, that the land in question (parcel no. 590) had always been part of a forest area and that therefore the applicant could not claim to be a victim of a violation of his right to protection of property in the absence of “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. They noted in this connection that the applicant had never had a title to the land in question and had never paid land tax.

The Court observes at the outset that the application was submitted twenty days after the final domestic decision, which fact has been accepted by the Government. Accordingly, it cannot be rejected for non-compliance with the six-month rule. This being so, it must next determine whether there has been an interference with the applicant’s right to peaceful enjoyment of his possessions protected by Article 1 of Protocol No. 1.

The Court reiterates that Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules: “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 three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 62, 11 January 2007).

The Court further recalls that Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Kopecký v. Slovakia [GC], no. 44912/98, § 35 (c), ECHR 2004‑IX).

However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence. On the other hand, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (Anheuser-Busch Inc., cited above, § 65 and Kopecký, cited above, § 50).

In the instant case, the Court is called upon to determine primarily whether the applicant had “possessions” or a legitimate expectation of obtaining the enjoyment of the property in question in view of the above principles.

In this connection, it notes that the applicant purchased the plot of land in question (parcel no. 590) from a villager who had allegedly been in possession of it for over thirty years. However, the parties had not concluded a written transaction and the applicant did not obtain a title deed indicating that he had become the legal owner of the land. Following the cadastral works carried out by the authorities in 1974, the land in question was divided into two parcels, namely parcel no. 370 for which the applicant was designated as the legal owner and parcel no. 590, which was designated as forest land. Since no objection was made, the decision became definitive and parcel no. 590 was registered with the title of the Treasury in the regional title deed registry. It was only in 1983 when the local authorities fined him for illegal utilisation of forest land that the applicant claimed that he became aware of the registration. Subsequent to the proceedings instituted by the applicant, the domestic courts found that parcel no. 590 was forest land and that the applicant had illegally occupied it by expanding the boundaries of his land, namely parcel no. 370. In this connection, the courts relied on older land inventories which proved that parcel no. 590 was on the outer limits of a neighbouring forest. They therefore concluded that, although the natural flora had been removed as a result of intensive cultivation for many years, the land should be considered as despoiled forest which had never belonged to the applicant. It thus follows that, in respect of parcel no. 590, the applicant has never had any “possessions” or legitimate expectation of obtaining an “asset” within the meaning of Article 1 of Protocol No. 1 (see, a contrario, N.A. and Others v. Turkey, no. 37451/97, § 10, ECHR 2005‑...).

Turning to the applicant’s assertion that the domestic courts erred in their interpretation and application of the domestic law and assessment of the evidence before them, the Court reiterates that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see García Ruiz v. Spain [G.C.] no. 30544/96, § 28, ECHR 1999-I and Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1988-II, p. 540, § 59), and it cannot substitute its view for that of the domestic courts’ finding in regard to the physical characteristics and ownership of the land in question.

In sum, the Court finds that the authorities’ decision to classify the land as forest land and the decision of the domestic courts to uphold that classification cannot be said to be an interference with the applicant’s property right with respect to the land: he had none to assert. The fact that the Treasury, as the legal owner, sold the deforested land to a third party makes no difference in this respect.

It follows that this complaint is inadmissible as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Boštjan M. Zupančič
Registrar President