Kaynar and Others v. Turkey


Information Note on the Court’s case-law 229
May 2019
Kaynar and Others v. Turkey - 21104/06, 51103/06 and 18809/07
Judgment 7.5.2019 [Section II]
Article 41
Just satisfaction
Domestic law enabling appropriate reparation after the Court has found a violation of Article 1 of Protocol No. 1: strike out
Facts – An area of land that the applicants had recently purchased was, following a cadastral review, registered in the name of the Treasury. The applicants subsequently brought legal action to claim ownership through adverse possession. After an initial ruling in the applicants’ favour had been quashed, the land tribunal carried out the previously omitted verifications, with the result that the initial resolution of the dispute appeared to be confirmed. But in July 2004 a new law came into force excluding the type of land in question from the scope of acquisition by adverse possession. The tribunal applied that law retroactively and the applicants’ claims were dismissed.
Presidential ordinance no. 809, which entered into force on 8 March 2019, extended the remit of the compensation board, set up in January 2013, to cases where the Court had found a violation of Article 1 of Protocol No. 1 but had not ruled on claims for just satisfaction under Article 41 of the Convention or had decided to reserve the question.
Law – Article 1 of Protocol No. 1: The examination of the case showed that all the conditions for adverse possession would have been satisfied if it had not been for its exclusion by the new legislation introduced while the proceedings were pending. The applicants had thus had a legitimate expectation that could be regarded as a “possession” (see by contrast, concerning the same legislation, Dimopulos v. Turkey, 37766/05, 2 April 2019, Information Note 228).
The deprivation of ownership sustained by the applicants had been lawful but, in the absence of compensation, they had been made to bear an individual and excessive burden.
Conclusion: violation (unanimously).
Article 41
(a)  Pecuniary damage – The domestic authorities, which had the appropriate legal and technical means, were undoubtedly best placed to assess any damage sustained and to provide redress. Where, as in the present case, it was a matter of determining the value of real estate in a Contracting State at a given date, such an assessment was almost objectively impossible for the Court, since it was very closely linked to the national or even local context. The new remit of the compensation board strengthened the subsidiary aspect of the human rights protection mechanism set up by the Convention. It was also capable of facilitating the tasks of the Court and the Committee of Ministers under Articles 41 and 46 thereof respectively.
In its previous case-law the Court had found that the compensation board offered a new appropriate domestic remedy that applicants were required to use beforehand. In the present case it took the view that an appeal to the compensation board within one month from the notification of its final judgment was an appropriate means of seeking redress for an established breach of Article 1 of Protocol No. 1. Accordingly, and since there was no special circumstance related to respect for human rights which required the Court to continue its examination of the application, it did not need to rule on the claims submitted by the applicants in respect of pecuniary damage. This conclusion did not preclude the subsequent restoration of these complaints to the Court’s list if necessary.
(b)  Non-pecuniary damage – The presidential ordinance of March 2019 also enabled the compensation board to grant reparation on the basis of non-pecuniary damage. The Court did not therefore have to examine this aspect either.
Conclusion: struck out (unanimously).
The Court further found a violation of Article 6 § 1 on account of the length of the proceedings; under Article 41 it awarded EUR 5,000 for the corresponding non-pecuniary damage.
(See also Turgut and Others v. Turkey (dec.), 4860/09, 26 March 2013, Information Note 161; Demiroğlu v. Turkey (dec.), 56125/10, 4 June 2013, Information Note 164; and Yıldız and Yanak v. Turkey (dec.), 44013/07, 27 May 2014, Information Note 175)
 
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This summary by the Registry does not bind the Court.
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