CASE OF DOĞRUSÖZ AND ASLAN v. TURKEY
Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
4. The applicants were born in 1931 and 1930 and live in Ankara and Hatay, respectively. 5. In 1965 the applicants bought a plot of land in Hatay from the Samandağ Municipality. 6. On 9 September 1976 the Ministry of Construction and Settlement conducted land consolidation proceedings and defined the coastline in the area where the applicants’ land was located. 7. On 27 April 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance in Civil Matters to determine whether the applicants’ plot of land was located within the coastline area. They claimed that, according to the Coastal Law, the land in question could not be owned by individuals and must only be used for public benefit purposes. 8. On 3 May 1995 a group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that it was located within the coastline area. 9. On 3 July 1995 the Samandağ Municipality filed an action before the Samandağ Court of First Instance in Civil Matters, on behalf of the Treasury, requesting the annulment of the record in the title deed registry of the applicants’ ownership. Furthermore, it requested the court to issue an injunction in order to prevent any transfer of that title until the end of the case. 10. On 19 September 1996 the applicants filed a petition with the court objecting to the expert report of 3 May 1995. They argued that, as the expert report failed to take into consideration the flora of their property as well as the features and age of the surrounding buildings, it could not be taken as a basis for the annulment of the record in the title deed register. Moreover, they maintained that the Municipality had not only disposed of the property as the original owner, but it had also encouraged the construction of buildings in the surrounding area, by implementing a development plan. 11. The court decided to obtain the opinion of another group of experts. On 28 October 1997, following a second inspection, the experts confirmed the first report. The summary of the report is as follows: “The first cadastral survey was carried out in the area on 29 March 1948. Thus, the title deed of the plot of land was registered before the coastal law came into force. The plot of land in question is covered by the development plan, approved by the Ministry of Public Works and Settlement. However, at the present time there is no construction on this plot. The inspection carried out in the surrounding area reveals that the land is situated on the beach which is considered as the prolongation of the sea. The soil has a sandy texture. There is no vegetation on the land, as the soil is not suitable for cultivation. The land is located within the coastline. Thus the plot of land in question has to be under the authority of the State. It cannot be the subject of private property.” 12. On 16 December 1999 the Samandağ First Instance Court upheld the request of the Treasury and decided to annul the record in the title deed register. It also ordered the applicants to reimburse the legal expenses of the plaintiff. The summary of the court’s reasoning in its final decision is as follows: “At the time when the coastline had been determined, Law no. 6785 on urbanism (9 July 1956) was in force. The definition of the coastline found in Article 105 of Law no. 6785 is similar to the description in the Coastal Law (Law no. 3621). Article 43 of the Constitution provides that the coasts are under the authority of the State. This assertion is also established by Article 641 of the Civil Code, Article 33 of the Land Registry Law and Article 16 of the Cadastral Law. Thus, coasts cannot be subject to private property rights. As it is stated by the Constitutional Court in its decisions dated 25 February 1986 and 18 September 1991, the construction of buildings on these lands and the use of these buildings in good faith cannot provide a derogation from this rule. In the light of the above, the court decides to annul the record in the title deed registry, which was in the name of the applicants. Furthermore it decides to prolong the interim measure, until the court’s decision becomes final.” 13. The applicants appealed against this decision, arguing that they had a vested interest on this property that had to be respected by the authorities. Furthermore, they maintained that, according to the cadastral survey which was carried out in 1938, the plot of land was designated as an unrestricted, public area. Since the cadastral planning of a location can only be carried out once, there cannot be any dispute concerning their property rights over the plot of land in question. Additionally, they claimed that the experts had erred in their establishment of the coastline. 14. On 3 October 2000, in view of the expert reports as well as the established case-law on this matter, the Court of Cassation upheld the decision of the Samandağ Court of First Instance. 15. On 30 April 2001 the Court of Cassation dismissed the applicants’ request for rectification of the decision as none of the conditions required by Article 440 of the Code on Civil Procedure were present in the case. The applicants were notified of the decision on 5 June 2001. 16. Article 43 of the Constitution provides: “The coasts are under the control and at the disposal of the State. Public interest has priority with regard to the exploitation of the sea coasts, lake shores or river banks and the coastal strip along the sea and lakes. Taking into consideration the purpose of their use, the width of coasts and coastal strips and the conditions in which individuals can make use of these locations shall be determined by law.”