The deprivation of property for lack of compensation, violated Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights. State’s obligation to asses any damage.
Kaynar and others v. Turkey 07.05.2019 (no. 21104/06, 51103/06 and 18809/07)
Protection of property under Article 1 of Protocol No. 1. The applicants had deprived the land, that had purchased, because it was classified as a “natural site” and register in the name of the Treasury, without receiving any compensation, on the ground that the legislation on the protection of cultural and natural heritage was amended, while the proceedings for the registration of their land with the rules on adverse possession, were pending. The EU Court found violation of Article 1 of Protocol No. 1 (protection of property) and reiterated that the domestic authorities were responsible to assess any damage. Violation of Article 6&1 (right to a fair hearing within a reasonable time) because the length of the proceedings (about 10 years), did not satisfy the requirement of a reasonable time .
Article 1 of the First Additional Protocol
Article 6 par. 1
The applicants, Naci Kaynar, Ayşe Boztepe and Cemile Bürge Kuşman, are Turkish nationals who
were born in 1953, 1938 and 1967 respectively, and live in Çanakkale (Turkey).
In 1993 and 1995 the applicants purchased land on the island of Gökçeada. The land was classified as a “natural site” whose ownership was unregistered.
In 1996 the land was registered in the name of the Treasury, in connection with a cadastral review.
That same year, the applicants applied to the Gökçeada land tribunal seeking the registration of the
land in their names, in accordance with the rules on adverse possession.
In 1999 the tribunal granted their request, taking the view that the conditions for adverse possession
were satisfied. That judgment was overturned by the Court of Cassation, which found that the
judges of the land tribunal had not duly enquired as to whether the land was used for grazing and
could not therefore be acquired by adverse possession.
In 2004, while the proceedings before the land tribunal were pending, the legislation on the
protection of cultural and natural heritage was amended. Land classified as a “natural site” could no
longer be acquired by adverse possession. As a result, the applicants’ claim was dismissed and the
land was registered in the name of the Treasury.
THE DECISION OF THE COURT
Article 1 of Protocol No. 1 (protection of property)
The legislative amendment of 2004 had deprived the applicants of the possibility of obtaining the
registration of their land, whereas they could have legitimately believed that they had satisfied all
the requirements to enable them to be recognised as owners of the real estate that they or their
vendors had possessed for a lengthy period of time.
The 2004 law had thus entailed an interference with the ownership rights that could have been
asserted by them under the law in force hitherto and, consequently, with their right to the peaceful
enjoyment of their possessions. The interference had satisfied the condition of lawfulness for the
purposes of Article 1 of Protocol No. 1.
The Court was prepared to admit that the legislative amendment sought to protect the
environment, which was a legitimate aim in the general interest. However, in 2007, after less than
three years, the law had again been amended such as to exclude all the land classified as natural
sites – the classification of the land at issue – from its scope. Henceforth, as already at the time when the applications were lodged, land within a natural site could be acquired by adverse
The Court further found that the applicants had not received any compensation and that the
Government had not relied on any exceptional circumstance to justify the total absence of any
award. Thus the applicants had been made to bear an individual and excessive burden, entailing a
breach of their rights under Article 1 of Protocol No. 1 to the Convention.
Article 6 § 1 (right to a fair hearing within a reasonable time)
The Court found that the length of the proceedings (about 10 years) did not satisfy the requirement
of a reasonable time. It thus found a violation of Article 6 § 1 of the Convention in respect of the
applications lodged by Ms Boztepe and Ms Kuşman.
Just satisfaction (Article 41)
As regards the interference with the right to the enjoyment of property, the Court noted that
presidential ordinance no. 809, which entered into force on 8 March 2019, had extended the remit
of the compensation board, set up in January 2013. That ordinance had laid down the principles and
procedure to be followed relating to compensation in cases where the Court had found a violation of
Article 1 of Protocol No. 1 to the Convention but had not ruled on claims for just satisfaction under
Article 41 of the Convention (which was the case here) or had decided to reserve the question.
Referring to the subsidiary nature of the human rights protection mechanism under the Convention,
the Court found that an appeal to the compensation board within one month from the notification
of its final judgment was capable of enabling compensation to be obtained from the authorities and
was therefore an appropriate means of seeking redress for an established breach of Article 1 of
Protocol No. 1. In this context the Court reiterated that the domestic authorities were undoubtedly
best placed to assess any damage sustained and had the appropriate legal and technical means to
put an end to a violation of the Convention and allow for reparation to be made, especially where it
was a matter of determining the value of real estate in a Contracting State at a given date.
The Court thus found that domestic law now allowed for reparation of the breach established in the
present case. It took the view that it did not need to rule on the monetary claims submitted by the
applicants and decided to strike out the part of the application under Article 41 of the Convention
concerning the alleged pecuniary and non-pecuniary damage.
As to the excessive length of the proceedings, the Court held that Turkey had to pay Ms Boztepe
and Ms Kuşman EUR 5,000 each for non-pecuniary damage and EUR 2,270 jointly for costs and