CASE OF AYANGİL AND OTHERS v. TURKEY
Violation of P1-1
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicants were born in 1952, 1930, 1950 and 1957 respectively and live in Ankara. 6. On 24 October 1967 the authorities adopted a new local construction plan (imar şuyulandırması) and decided to merge plots nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 and to register them as plot no. 24 in the İncesu neighbourhood in the Çankaya district of Ankara. Previously the applicants’ predecessors had been the owners of plot no. 9. Following the implementation of the said plan, the applicants’ predecessors had kept a share measuring 480 square metres on plot no. 24 (which measures 5280 square metres in total), and owned a two-storey house on the plot in question. Given that the aforementioned decision designated plot no. 24 as a school area and indicated that the buildings on this plot would be expropriated, the applicants’ predecessor, Mr İsmail Yılmaz, moved out of his house in 1969. 7. In a letter dated 26 March 1984 the deputy director of the Directorate of Education attached to the Ankara Governor’s Office (hereinafter “the Directorate”) sent a letter to the applicants’ predecessors, informing them that their building would be expropriated since the Directorate was planning to build a primary school on the land on which it was situated. The Directorate also noted that a commission would proceed to the determination of the value of the applicants’ building and its annexes. 8. Subsequently, the Directorate built the school. However, the Directorate did not conclude the expropriation proceedings for the applicants’ building, which remained in the schoolyard. 9. On 19 April 1995 the applicants’ predecessor filed a petition with the Directorate requesting the return of his plot of land, which had been occupied since the decision of expropriation in 1967 and the construction of the school. He noted that despite the expropriation decision, the authorities had done nothing despite continuing to occupy his plot of land and that this situation had restricted his right to the enjoyment of his property. He therefore asked the authorities to overturn the decision ordering expropriation. It is unknown whether the Directorate replied to the petition. 10. In 2000, after inheriting the property in question, the applicants brought an action seeking a declaratory judgment (tespit davası) before the Ankara Magistrates’ Court to the effect that their building was situated in the schoolyard. The Magistrates’ Court appointed an expert, who found that the building in question was indeed situated in the zone belonging to the İncesu Primary School. 11. The applicants brought an action before the Ankara Civil Court of First Instance against the Ankara Governor’s Office for compensation. They submitted, inter alia, that the Directorate was in actual possession of their property, without having conducted expropriation proceedings, and had failed to compensate them for the damage resulting from the interference with their property. 12. In a letter dated 12 January 2001 the Directorate informed the Ankara Civil Court of First Instance that the Incesu primary school was situated in block no. 8255, plot no. 24, and that the applicants owned a share of that plot measuring 480 out of a total of 5280 square metres. It noted further that, in the local building and settlement plan, plot no. 24 had been designated as a primary school zone and that the building and share of the land of the applicants had not been expropriated. 13. The Ankara Civil Court of First Instance appointed an expert, who conducted an on-site inspection. According to his report of 9 May 2001, the building in question was situated in the schoolyard. 14. On 23 May 2001 the First Instance Court partially granted the applicants’ request for compensation and ordered the Ankara Governor’s office to pay the applicants 99,976,950,917 Turkish liras (TRL). Relying particularly on the annotations in the land registry and the response given by the Directorate as well as other evidence contained in the file, the court found it established that the administrative authorities were in actual possession of the applicants’ property. 15. On 24 December 2001 the Court of Cassation quashed the judgment of 23 May 2001, considering that the Ankara Governor’s office could not be considered to have been in actual possession of the applicants’ building, since the administrative authorities had not prevented the applicants from using the building in question. The Court of Cassation further noted that the fact that the building was in the schoolyard did not necessarily mean that there had been a de facto expropriation, and concluded that the applicants’ request should be dismissed. The case was remitted to the Ankara Civil Court of First Instance. 16. On 21 May 2002 the First Instance Court abided by the Court of Cassation’s decision and dismissed the applicants’ request. In its decision, the court noted that the school building and the building belonging to the applicants were both on plot no. 24, which was used by the applicants themselves. The court therefore found that there had not been a de facto expropriation even though plot no. 24 had been allocated to the primary school in the local building and settlement plan (imar planı). 17. On 4 November 2002 the Court of Cassation upheld the judgment of 21 May 2002. 18. On an unspecified date the applicants requested the rectification of the Court of Cassation’s decision of 4 November 2002, claiming that there were clerical errors as well as errors of law in the decision. 19. On 6 May 2003 the Court of Cassation granted the applicants’ request and decided to rectify the clerical errors. 20. In their observations, the applicants submitted that following the communication of the present to the Government, the authorities had brought road blocks to the school yard with a view to delimiting the school yard from the applicants’ house. In this connection the applicants furnished photos taken on 3 April 2008. 21. In a letter dated 11 April 2008, furnished by the Government, the mayor of the neighbourhood (muhtar) stated that there were currently a number of tenants living in the applicants’ house situated in the yard of the Incesu primary school. 22. According to section 7 of the Expropriation Law no. 2942, as amended in 2001, when an expropriation decision was taken in respect of an immovable property, the administrative authorities shall inform the relevant land registry office for annotation of the said decision in the register. However, if the authority fails to furnish the land registry office, within six months of the annotation, with a document to be obtained from a court indicating that it had determined the price and requested the registration of the immovable property, the land registry office shall automatically remove the annotation. 23. Article 125 § 5 of the Constitution stipulates that the administrative authorities shall be liable to compensate for damage resulting from their actions and acts. Article 13 of Law no. 2577 on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administrative authorities may request compensation from them. In the event of complete or partial rejection of a compensation request, or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.