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: 2018-09-18 10:33:49

The ECHR judgment of 15 November 2016 in the case "Keriman Tekin and Others v. Turkey" (application No. 22035/10).

In 2010, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.

In the case, the complaint on the refusal to pay compensation for accidental damage to a building built in the absence of permission was successfully considered in the course of public works. 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.

 

CIRCUMSTANCES OF THE CASE


The applicants, who owned a plot of land in a zone of unstable soil, built a house there in 1997 without obtaining a building permit. In 2004, excavations (in preparation for the construction of a school on a nearby land plot) caused a landslide, which damaged the house to such an extent that it became impossible to live in it.

The applicants sued for damages to the authorities that organized the construction work. Several assessments were made, which concluded that there was a set of operating technical factors, and pointed out that structural deficiencies in the applicants' house also contributed to the damage by 15-20%. However, the courts refused to award even partial compensation on the grounds that (i) the applicants did not file applications for the legalization of illegal buildings and (ii) in any case their property could not be considered lawful for reasons based on current town planning regulations and specific technical features of the building.


ISSUES OF LAW


Concerning compliance with Article 1 of Protocol No. 1 to the Convention. (a) Availability of "property". The applicants' house was built on a piece of land that belonged to them, but in violation of town planning rules there was no building permit. They also did not have permission to use the house for living.

However, no action was brought against the applicants in connection with non-compliance with the law, and they used the property from the time of construction to the incident. There was nothing to indicate that the authorities were considering using their powers to demolish the building.

In addition, the applicants' allegation that no building in the administrative zone had a building permit was not disproved. Finally, the house was included in the land registry and was directly mentioned in the absence of specific comments in the title deed issued to the applicants. In view of these circumstances, the applicants had a property interest in the unhindered use of property that was of sufficient nature to constitute "property". Thus, Article 1 of Protocol No. 1 is applicable in the present case.

(b) Use of property. The subject of this dispute was solely the lack of compensation for causing physical harm to the applicants' home: their rights to the land on which the house was located were not disputed. Since the interference with the applicants' property consisted thus in the impossibility of using the house that was to be demolished, the contested interference must be examined in the light of the "general" rule contained in Article 1 of Protocol No. 1 to the Convention.

The applicants' house was built when municipal authorities had not yet adopted the city plan, and it was used for several years.

Indeed, the house was built without the required town-planning permission, and according to the domestic legislation, the authorities had the right to order its demolition as a means of punishment for non-compliance with town-planning standards. However, it should be recognized that the impugned damage was caused by accident and that the authorities never made a decision to demolish the house (which is different from the case "Tiryakioglu v. Turkey", complaint No. 24404/02, Decision of May 13, 2008 and Hamer v. Belgium, judgment of 27 November 2007, application no. 21861/03). On the contrary, the issue of the availability of a town-planning permit was first raised by the authorities within the procedure for demanding compensation to avoid personal liability.

The Court is not convinced that the interference was caused by the authorities' concern over the application of the existing rules: it seems that the rules served as a pretext for purely financial purposes. There was nothing to indicate that the Turkish authorities had pursued a consistent policy in the fight against illegal buildings or that they had decided to demolish all buildings that were in the same status as the applicants, at least in the area. Neither the authorities nor the authorities of the respondent State in the European Court disputed the allegation that almost no building in the district was granted a building permit. Indeed, the legislative practice known as "urban amnesty" seems to indicate the scale of unauthorized construction in the respondent state, the tolerance of the authorities towards it and their desire to resolve the legal situation with these buildings.

The motives given for refusing compensation to the applicants were not based on environmental considerations. In such circumstances, the refusal of the authorities to provide reparation for material damage caused an individual and excessive burden on the applicants, which violated the fair balance between their interests and the interests of society.


DECISION


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 the applicants EUR 5,000 in respect of non-pecuniary damage and EUR 11,000 in respect of pecuniary damage.

See also the judgment of the Grand Chamber of the European Court in the case of Eneryldiz v. Turkey, 30 November 2004, application no. 48939/99.

 

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