KÜÇÜK AND OTHERS v. TURKEY (European Court of Human Rights)

Last Updated on April 24, 2019 by LawEuro

Communicated on 15 January 2019

SECOND SECTION

Application no.46852/09
Bahattin KÜÇÜK and others
against Turkey
lodged on 17 August 2009

SUBJECT MATTER OF THE CASE

The application mainly concerns the domestic authorities’ refusal to return the applicants’ land, which had been expropriated in 1944 for the purposes of an airport construction and which had not been used in line with that purpose afterwards.

During the proceedings they brought for the annulment of the expropriation decision and to obtain compensation, the applicants argued that they had never been informed in any way about the expropriation procedure and that the land in question had never been used for purposes which constituted the basis of the expropriation. Their case was dismissed by the Supreme Administrative Court on procedural grounds.

The applicants complain of a violation of their rights under Article 6 of the Convention and Article 1 Protocol No. 1 to the Convention.

QUESTIONS tO THE PARTIES

1.  Did the applicants have a “legitimate expectation” for the restitution of their property, taking into account Articles 22 or 23 of the Expropriation Act No. 2942, as interpreted by the courts? (see, mutatis mutandis, Kemp and Others v. Luxembourg, no. 17140/05, 24 April 2008)?

2.  Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

(a)  Did the applicants receive compensation for the expropriation of their properties? If not, did this situation place an undue burden on them (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 110, 25 October 2012)?

(b)  Given the use currently being made of the property, was the expropriation based on a public interest ground within the meaning of Article 1 of Protocol No. 1 (see Keçecioğlu and Others v. Turkey, no. 37546/02, 8 April 2008)?

(c)  Having regard to the State’s positive obligation to ensure in its domestic legal system that property rights are sufficiently protected by law, were the applicants afforded a reasonable opportunity of challenging effectively the measures depriving them of their right to property (see SociétéAnonymeThaleiaKarydiAxte v. Greece, no. 44769/07, 5 November 2009)?

(d)  Taking account of the reasoning of the domestic courts in dismissing their case, were the applicants provided with adequate procedural guarantees for their rights under Article 1 of Protocol No. 1 (see Gereksar and Others v. Turkey, nos. 34764/05 and 3 others, 1 February 2011)?

3.  In view of the applicants’ inability to challenge the expropriation decision before the repeal of Law no. 3887 and the domestic court’s decision regarding the use of the expropriated land in 1998, has there been a violation of the applicants’ right of access to a court within the meaning of Article 6 of the Convention on account of the Supreme Administrative Court’s dismissal of their case on procedural grounds (see SociétéAnonymeThaleiaKarydiAxte, cited above)?

The Government are invited to provide the Court with case-law examples in this matter.

4.  Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the Supreme Administrative Court provide sufficient reasoning, taking account of the applicants’ arguments as regards the applicability of Law no. 2942 in their case (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 83-84, 11 July 2017)?

The parties are invited to provide the Court with an expert report, preferably judicial, on the value of the property at issue. The report should point out all the objective criteria it relies on in reaching its conclusions.

LIST OF APPLICANTS

No.	Firstname LASTNAME	Birth year	Nationality	Place of residence	Representatives
1.	Bahattin KÜÇÜK	1947	Turkish	İzmir	Denizer ŞANLI   Erol SARAÇOĞLU   Murat YAVUZ
2.	Melek AVCI	1950	Turkish	İzmir
3.	MürüvetŞenay ÇINAROĞLU	1944	Turkish	İzmir
4.	Orhan ERSANLI	1931	Turkish	İzmir
5.	Emine GAYIR	1937	Turkish	İzmir
6.	İsmet GÜLDEMİR	1950	Turkish	Bolu
7.	Ayhan İZMİR	1939	Turkish	İzmir
8.	Cengiz İZMİR	1957	Turkish	İzmir
9.	Nursel KARA	1960	Turkish	İzmir
10.	Havva KARADAĞ	1953	Turkish	İzmir
11.	Fatma KAYA	1923	Turkish	İzmir
12.	Ayten KAYAKUŞ	1941	Turkish	İzmir
13.	Nesrin KOCAORMAN	1964	Turkish	İzmir
14.	Hatice KÜÇÜK	1925	Turkish	İzmir
15.	Mehmet KÜÇÜK	1943	Turkish	İzmir
16.	Hacer BELHAN	1975	Turkish	İzmir
17.	Mehmet MERMERCİOĞLU	1977	Turkish	İzmir
18.	Ayşe ÖNDER	1948	Turkish	İzmir
19.	Mehmet SARGIN	1936	Turkish	İzmir
20.	Şerefnaz SÖNMEZ	1953	Turkish	İzmir
21.	Aligalip TUĞAN	1942	Turkish	İzmir
22.	Nilgün TUĞAN	1947	Turkish	İzmir