ECHR judgment of May 7, 2019 in the case of Kaynar and Others v. Turkey (applications No. 21104/06 and other complaints).
In 2006, the applicants were assisted in preparing applications. Subsequently, the applications was consolidated and communicated by Turkey.
The case has successfully examined applications about a situation where domestic law provides for the provision of an adequate remedy for damages after a violation by the European Court of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The complaint is excluded from the list of cases pending before the European Court. In the case, there was a violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
As a result of cadastral work, the land plots that the applicants recently acquired were entered into the land register as state property. The applicants appealed to the court in order to obtain recognition by their owners by acquisitive prescription. After the cancellation of the first court decision in favor of the applicants, the court conducted the necessary checks, the results of which testified in favor of the initial resolution of the dispute. However, in July 2004 a new law came into force, according to which the corresponding type of land was excluded from the scope of acquisitive prescription. The court applied the law retroactively. The applicants were denied appeal.
On March 8, 2019, a decree of the President of Turkey entered into force, which expanded the competence of the commission for compensation for damage created in January 2013 and included cases in which the European Court concluded that there was a violation of Article 1 of Protocol No. 1 to the Convention, without consideration of equitable compensation in accordance with article 41 of the Convention; or decided to consider the application of this article later.
QUESTIONS OF LAW
Regarding compliance with Article 1 of Protocol No. 1 to the Convention. From the materials of the case it followed that all the conditions for applying the principle of acquisitive prescription would have been met if such a possibility had not been excluded by a new law that entered into force during the consideration of the present case. Thus, the applicants had a legitimate expectation that could be considered “property” (see the opposite situation regarding the same law in the Dimopulos v. Turkey judgment of 2 April 2019). complaint N 37766/05).
The deprivation of the applicants' property was legal, but in the absence of compensation they were given a special and excessive burden.
In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
Regarding compliance with article 41 of the Convention. (a) Material damage. Turkish courts, which have the appropriate legal and technical means, are undoubtedly in a better position to assess and compensate for the damage caused. When, as in the present case, it is a matter of determining the value of immovable property in a Contracting State on a given date, making such an assessment for the European Court is almost objectively impossible, since it is closely related to the situation in the country or even the local context. The new powers of the commission for compensation for damage reinforce the subsidiary role of the human rights protection mechanism established by the Convention. These powers may also help the Court and the Committee of Ministers to carry out the tasks assigned to them by Articles 41 and 46 of the Convention, respectively.
In its previous case-law, the Court concluded that the possibility of applying to the commission for damages was an adequate domestic remedy, which the applicants had to first exhaust. In the present case, he considers that applying to the commission for damages within a month from the date of notification of the final judgment of the European Court is an appropriate means of providing redress for the violation found. Accordingly, and since there are no special circumstances regarding respect for human rights and requiring consideration of the applicants ’claim for pecuniary damage, the Court no longer needs to consider these claims. This conclusion does not prevent the reinstatement of the complaint from the list of cases to be examined by the European Court, if necessary.
(b) Non-pecuniary damage. The Decree of the President of Turkey of March 2019 also gives the commission for compensation of harm the powers to award compensation for moral damage. Therefore, the Court is further not required to examine this aspect of the applicants' claims.
The complaint is excluded from the list of cases pending before the European Court of Justice (accepted unanimously).
Furthermore, the Court concludes that there has been a violation of Article 6 § 1 of the Convention because of the length of the proceedings. In applying Article 41 of the Convention, he awarded the applicant EUR 5,000 in respect of non-pecuniary damage.