BOZOĞLU (AKARSU) AND OTHERS v. TURKEY
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra
1. The applicants, Mrs Cemile Bozoğlu (Akarsu), Mrs Hepgül Korucu (Akarsu), Mr Hamit Akarsu, Mr Mahmut Akarsu, Mr Aziz Akarsu, Mr Veysel Akarsu, Mr Alem Akarsu and Mrs Leyla Demir (Akarsu), are Turkish nationals who were born in 1950, 1942, 1953, 1948, 1946, 1937, 1933 and 1934 respectively and live in Erzurum. They were represented before the Court by Mr A.F. Ataman and Mrs H. Ataman, lawyers practising in Erzurum. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants are the owners of a plot of land of 40,000 square metres (plot no. 227) in Nenehatun village, Erzurum. The plot in question is situated in the vicinity of military barracks. 4. On an unspecified date, the military forces enclosed 23,600 square metres of plot no. 227 with a wire fence. 5. On 18 May 1998 the applicants brought an action (case no. 1998/184) in the Third Chamber of the Erzurum Civil Court of First Instance against the Ministry of National Defence (“the Ministry”) and requested compensation for de facto expropriation of 23,600 square metres of their plot. They alleged that the Ministry had forbidden them access to their land, claiming that it was a military security zone. 6. On 11 June 1998 the Treasury and the Ministry brought a cross-action (case no. 1998/234) with the First Chamber of the Erzurum Civil Court of First Instance and requested to be registered as the owners of plot no. 227, claiming that the plot in question was located in a restricted military and security zone and that the military forces had control over it pursuant to Articles 7, 9 and 21 of Law no. 2565 (Law on the Restricted Military Zones and Security Zones). 7. On an unspecified date the Third Chamber of the Erzurum Civil Court of First Instance decided to await the outcome of the proceedings before the First Chamber. 8. On 28 October 1998 a judge from the First Chamber of the Erzurum Civil Court of First Instance, together with representatives of the parties and experts, conducted a survey of the applicants’ land. The local experts stated that the land had been owned by Musa Akarsu and that the applicants had inherited it from him. They noted that the military brigade had occupied half the land and had fenced it in 1990-1991, during the first Gulf War. The applicants had been denied access to half their land by the military authorities but had continued to cultivate the other half for almost eight years. The wire fence had been removed some five or six months before. 9. On 17 December 1998 the First Chamber of the Erzurum Civil Court of First Instance dismissed the case by the Treasury and the Ministry. In its judgment the first-instance court stated the following: “... It has been understood that plot no. 227 comprises 40,000 square metres and that the owner of the plot was Musa Akarsu, the ancestor of the defendants. He used the plot until his death in 1998 and since then the defendants have been using it. It has also been understood that the military command enclosed 10,300 square metres of the plot during the eighties and that the fence was removed in the summer of 1998. The witnesses stated that the plot had been used by the ancestor of the defendants prior to the Gulf War and that during the Gulf War the military command had moved the fence and had taken actual possession of half the plot. In a letter dated 10 November 1998 the Erzurum Construction and Property Directorate of the Ministry informed the court that the plot was outside the military zone. In view of the evidence gathered, the court concludes that the disputed plot is outside the military zone and that the defendants are in actual possession of it. The administration has failed to substantiate its allegation and therefore the case is dismissed. ...” 10. On 14 June 1999 the Court of Cassation upheld the judgment of 17 December 1998. 11. In a letter of 22 December 1999 the Commander of the 9th Army Corps informed the Third Chamber of the Erzurum Civil Court of First Instance that the land in question, namely 23,600 square metres of land forming part of plot no. 227, was within the military security zone. However, under Law no. 2565 and Law no. 5949, owners of land within military security zones were free to reside and carry out agricultural activities. According to this letter, owners of such land are required to seek permission from the authorities only for construction, timber felling or sale of their property to non-Turkish citizens. 12. On 30 December 1999 the Third Chamber of the Erzurum Civil Court of First Instance awarded the plaintiffs in case no. 1998/184 a total of 6,354,117,600 Turkish liras (TRL) for the value of the land, in accordance with the expert report submitted to it. The first-instance court ordered the annulment of the applicants’ title and registration of the land with the title of the defendant. It observed that the plaintiffs’ ancestor had been the owner of plot. 227 and that the Ministry had limited their rights over the plot, which had resulted in the de facto expropriation of the land. The court further considered that the control of the use of property by the administration contradicted the legal principles governing the right to property. 13. On an unspecified date, the Treasury and the Ministry appealed. 14. On 5 June 2000 the Court of Cassation quashed the judgment of 30 December 1999. In its decision, the Court of Cassation stated the following: “... 1- There is no power of attorney attesting that Refika Akarsu and Mahmut Akarsu had given authority to the plaintiffs’ representative. Therefore, the first-instance court should have rendered a decision pursuant to Article 67 of the Code on Civil Procedure in respect of these two plaintiffs. 2- According to the letter of the 9th Army Corps Command dated 22 December 1999, the land in dispute is located within the military security zone. As mentioned in this letter, there is no control of the use of the property as rural land (arazi). The owner of the land can use it subject to the authorisation of the Army Corps Command. Since the plot in question is rural land [as opposed to urban land (arsa)], there is no de facto expropriation and, therefore, the plaintiffs cannot request compensation. ...” 15. On an unspecified date the applicants requested rectification of the Court of Cassation’s decision. 16. On 6 October 2000 the Court of Cassation dismissed their request. 17. On 30 March 2001 the first-instance court abided by the Court of Cassation’s decision and decided to discontinue the proceedings in so far as they had been brought by Refika Akarsu and Mahmut Akarsu pursuant to Article 67 of the Code on Civil Procedure. It further dismissed the applicants’ claim for the value of the land in accordance with the Court of Cassation’s reasoning. 18. On 30 October 2001 the Court of Cassation upheld the judgment of 30 March 2001. 19. On 8 March 2002 the Court of Cassation once again dismissed the applicants’ request for rectification of the decision. 20. On 4 December 2007 the authorities carried out an inspection of the applicants’ land (plot no. 227). The inspection report, prepared by a real estate expert, stated that the premises had been visited in the company of the village mayor and that it had been observed that the plot in question had stayed outside the fence. Furthermore, the land was not occupied and there was no obstacle to cultivation. Yet it had been noted that, according to some witnesses, the land was only used to grow grass (for animals) and not cultivated. 21. The relevant page of the log book kept at the Erzurum land registry office indicates that Musa Akarsu, the applicants’ ancestor, had been the owner of the land in dispute. 22. A description of the relevant domestic law and practice can be found in Tiryakioğlu v. Turkey (dec.), no. 24404/02, 13 May 2008. 23. It appears from the established practice of the Court of Cassation that when land is located within a restricted military zone the owners of the land in question cannot claim compensation for de facto expropriation unless the administration permanently denies access to that land with the intention of owning it (see, in particular, decision no. 2002/376 on file no. 2002/4-382 of the Grand Chamber of the Court of Cassation). Furthermore, such restriction is not considered de facto expropriation. Accordingly, the litigants cannot claim compensation for the value of their land. However, they may obtain compensation for temporary denial of access to land or damage resulting from restrictions imposed on the use of their land. 24. Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review. ... The administration shall be liable to indemnify any damage caused by its own acts and measures.”