The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Prot Сведения: 2018-08-14 19:08:19

ECHR judgment of 13 December 2016 in the case of Kutlu and Others v. Turkey (application no. 51891/11).

In 2011, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.

In the case, a complaint was successfully considered for payment of partial compensation instead of the full expropriation cost for land burdened with material and legal restrictions in connection with the construction of a nearby dam. The case involved a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

The circumstances of the case


The applicants were the owners of several plots of land near which the dam was built. Two sites were located in the zone of maximum protection around the dam, and the third was in the nearby protection zone.

This neighborhood entailed a number of restrictions, both physical (difficult access, destruction of telephone and electrical networks and the like), and legal (prohibition of construction work and restrictions on agricultural activities).

In order to receive compensation in connection with the damage caused, the applicants brought several actions to the court, asking for the expropriation of their land. The domestic courts refused to take decisions on expropriation, but awarded the applicants financial compensation.


Law issues


Concerning compliance with Article 1 of Protocol No. 1 to the Convention. (a) Areas N 84/72 and 84/76. The use of the plots was affected by extremely strict physical and legal restrictions: the plots could only be reached by non-motorized vessels, they were not allowed to build and agricultural activities were banned.

The law provided for expropriation, if the land near the dam became "unusable". The bylaw, to which the law referred, established that the areas located in the maximum protection zone around the drinking water reserve were "subject to expropriation". Given the use of the verb "to be", and not "could be subject to", this text did not vest any discretionary discretion to the authorities who did not have the freedom to choose between expropriation and payment of a lower level of compensation. On the contrary, the subordinate act deprived the authorities of any discretionary powers, obliging them to acquire land, and thereby guaranteed to the owners of the plots located in the zone of maximum protection the real right of refusal, that is "the right to be expropriated".

This right of refusal, provided for in the domestic by-law, was a "property interest" for the purposes of Article 1 of Protocol No. 1 to the Convention. The right to be expropriated and receive compensation payments corresponding to the value of land plots represented "property". Refusing to expropriate land and preferring to pay compensation for damage resulting from restrictions on the use of property, the authorities violated the property interest provided by Turkish law and protected by the Convention.

Such a violation could not be regarded as compatible with the requirements of Article 1 of Protocol No. 1, not only considering that it had no legal basis, but also that its real justification was not available. The domestic courts gave insufficient reasons for their decisions to award compensation, corresponding to the reduction of the value of the land, instead of ensuring the applicant's right to refusal by deciding on expropriation and awarding compensation corresponding to the value of the land. In this regard, it should be noted that the country's courts did not formulate any position regarding the aforementioned by-law. The Turkish authorities also did not specify a convincing reason for such an intervention.


Resolution


In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (adopted by six votes "for" at one - "against").

(b) Site N 81/44. The site, which was located in a nearby protection zone, was subject to a number of restrictions designed to protect the quality of water in the reservoir. So, on it was prohibited any construction. In addition, agricultural activities were allowed only after the approval of the relevant ministry and subject to refusal to use chemical fertilizers or other products. The domestic by-law did not provide for "the right to be expropriated" with respect to this site. The law linked the requirement to expropriate land located near the dam, with the fulfillment of the condition of their "unfit for exploitation". However, the country's courts did not come to the conclusion that this property became unfit for exploitation in the meaning of this provision. Thus, it can not be concluded that in the present case the applicants had the right to be expropriated on the basis of this article. As for the by-law, he did not establish that restrictions affecting land in the nearby protection zone automatically made the land unsuitable for exploitation, and did not otherwise require expropriation. Accordingly, in the absence of the "right to be expropriated", recognized in the country's legislation and capable of representing a property interest protected by the Convention, and therefore "property", payment of compensation corresponding to the damage resulting from legislative restrictions was acceptable for the purpose of achieving a fair balance between rights of applicants and society.

The expert appointed by the court estimated the decrease in the value of the land as a result of restrictions on its use in 40%. Nevertheless, the court awarded compensation in the amount of 25% of the value of the property with only a reference to the criteria that must be taken into account. This could not be considered sufficient motivation, given that the court did not indicate why and how the application of these criteria should have meant that the reduction in value was limited to 25%.

The way in which compensation was determined did not allow the Court to conclude that it was reasonably related to the damage suffered.

At the same time, there is no need for a detailed answer to every argument put forward by the plaintiff, but it is the duty of the courts to adequately formulate the reasons on which their decisions are based, assuming that the victim can expect a careful and thorough examination of his basic requirements. As a result, nothing confirmed the conclusion that the necessary fair balance between the general interest and the requirements for the protection of the applicants' rights was achieved.


Resolution


The case involved a violation of the requirements of Article 1 of Protocol No. 1 (unanimously adopted).


Compensation


In the application of Article 41 of the Convention. The Court awarded EUR 455,000 in respect of pecuniary damage jointly to all applicants and EUR 1,500 to each applicant in respect of non-pecuniary damage.

 

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