Last Updated on April 28, 2019 by LawEuro
Information Note on the Court’s case-law 228
April 2019
Dimopulos v. Turkey – 37766/05
Judgment 2.4.2019 [Section II]
Article 6
Civil proceedings
Article 6-1
Fair hearing
violation
Facts – In 2003, claiming ownership by adverse possession (provided for by the Turkish Civil Code as of twenty years’ continuous possession), the applicant brought a civil action seeking to be recognised as the owner of land which was registered at the time as the property of the State Treasury.
In July 2004 an amendment to the Law on the Protection of the Cultural and Natural Heritage entered into force. Under the Law, exceptions to the rule of adverse possession, which had previously been more limited, were now extended to all natural sites (including the land occupied by the applicant).
In October 2004 the court hearing the case dismissed the applicant’s action outright, on the ground that the legislative amendment was a rule of “public policy” and therefore applied to pending cases that had not yet been the subject of a final decision. The question whether the conditions for acquisition by adverse possession had previously been met was therefore not examined.
In 2007 the above-mentioned legislative amendment was abolished in substance.
Law – Article 6 § 1: Until the entry into force of the legislative amendment in question, domestic law had clearly permitted the applicant to acquire ownership of the property if the conditions for acquisition by adverse possession were met. The retroactive application of the new Law had the effect of depriving her of any prospect of success in her action to acquire ownership of the land.
Admittedly, there was nothing to suggest that the legislative amendment had been specifically aimed at the present dispute. However, a mere reference to public policy in the court’s judgment did not constitute a sufficient reason for the retroactive application of the Law. Likewise, the Government had not taken the trouble to explain to the Court the reasons for the retroactive application of the legislative amendment in the context of the judicial proceedings to which the Treasury had been a party.
The Court was prepared to accept that the retroactive application of the Law had been intended to protect the environment. However, for such application to be considered compatible with the Convention, the judicial decisions should have provided sufficient reasons for it. Retroactive measures of this kind affected not only the right to a fair hearing, but also more generally the principle of the rule of law that was inherent in all the Articles of the Convention.
Moreover, less than three years after the 2004 amendment, the Law in question had been amended again, and land in the category to which the disputed property belonged could now be acquired by adverse possession, as had been the case when the applicant had brought her action. Therefore, in the absence of any information on the scope of the retroactive application of the legislative amendment, it was difficult to conclude that there had been a practical correlation between the retroactive application of the legislation in question, which had remained in force for less than three years, and environmental protection in general.
In sum, it did not appear from the case file that the legislative intervention had been justified on compelling grounds of general interest.
Conclusion: violation (unanimously).
Article 41: EUR 6,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
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