Violation Of The Right To Property Due To Inadequate Compensation Awarded By The Compensation Commission For The Immovable Property Determined As Forest
Events
On 4/12/1986, the applicant purchased six immovables, which were registered in the title deed in the name of another person and used as private forest. As a result of the forest cadastre announced by the Forest Cadastre Commission on 16/3/1993, the immovables were found to be within the borders of Mavromat Tepe I State Forest. Thereupon, the applicant filed a lawsuit and the lawsuit was dismissed on the grounds that the immovables were not forests. The decision was finalised in this way.
The applicant made an individual application to the European Court of Human Rights (ECtHR); the ECtHR ruled that the application was inadmissible for non-exhaustion of domestic remedies, pointing to the Human Rights Compensation Commission (Compensation Commission).
Applicant applied to the Compensation Commission. The Compensation Commission awarded the applicant 175,000 TL compensation. The Compensation Commission stated that the state should compensate the applicant’s damages in accordance with equity, as the title deed registration had lost its legal validity. Emphasising that the current value of the immovable property was exorbitant, the Compensation Commission considered that the updated value of the price paid by the applicant for the immovable property in 1986 in the face of inflation would also be insignificant, and therefore, it would be appropriate to award the applicant 175.000 TL compensation in accordance with equity for all his damages. The applicant’s appeal to the Regional Administrative Court was rejected on the grounds that the compensation assessed was in accordance with equity.
Allegations
The applicant claimed that his right to property was violated due to the inadequacy of the compensation paid for the immovable property identified as forest.
The Court’s Assessment
Pursuant to Article 169 of the Constitution on the protection and development of forests, forests cannot be subject to private ownership. However, it is obvious that the immovables in question were subject to private ownership according to the title deed records created by the public authorities. It has not been shown by the public authorities that there was any annotation or indication in the title deed records at the time of the purchase of the immovables in question by the applicant, and it is understood from the scope of the file that there is no other fact that shows that the applicant was in a position to know that the immovables were state forests.
The fact that the immovables are private forest does not make it foreseeable that they may be demarcated as state forest in the future. Because private forest is not a completely prohibited institution in the Turkish legal system. Even today, there are many immovables with the characteristics of private forest. As a matter of fact, provisions regarding private forests are included in the Forestry Law No. 6831.
Since the creation and maintenance of land registries are under the supervision of public authorities, it is natural that the state is responsible for the creation of these registries erroneously, even though they are forests. Although the intervention has a legitimate purpose based on public interest in the context of the protection of immovable properties that are forests, the interests of the applicant, who is the owner of the property right based on the title deed issued by the state, should also be taken into consideration and in this context, all the consequences of the erroneous action of the administration should not be imposed on the applicant.
In this context, it can be said that the payment of compensation in return for the cancellation of the title deed is an important tool that will alleviate the burden imposed on the applicant and ensure the balancing of public interest and individual interests.
It should be noted that the fact that the current value of the immovable property was not taken into account in the calculation of the compensation to be paid to the applicant does not violate Article 35 of the Constitution. Options other than the calculation of the value of the immovable at the time of the intervention may cause the owner to gain unfair gain or suffer unfair loss due to subsequent increases or decreases in the value of the immovable. Therefore, it cannot be said that the current value of the immovable should be given in order to ensure the fair balance between the owner’s property right and the purpose of protecting forests.
As a matter of fact, the approach of the ECtHR is to award the value of the immovable property at the date of loss of ownership. Undoubtedly, in the calculation of the amount of compensation, the nature of the immovable property at the date of loss of ownership will also be taken into consideration. However, in the calculation of the compensation to be paid to the owner, the quality and value of the immovable property at the date of loss of ownership should be taken as a basis, but the part of it lost against inflation should also be compensated. Otherwise, the owner, who cannot use his immovable property for years and cannot benefit from the value of the immovable property, will have endured a disproportionate burden in return for the benefit he has obtained.
In this framework, the Compensation Commission’s reduction of the state’s responsibility to the fact that it caused the title deed of the immovable property to circulate causes the constitutional guarantees of the right to property to be ignored. İn the concrete case, it should be remembered that there is no situation in which the applicant can claim the price paid to a third party who benefits from the principle of trust in the land registry.
In the case, the title deed of the applicant’s immovable property was cancelled by the state on the grounds that it was a forest. The cancellation of the title deed for the protection of forests is in the nature of deprivation of property and the responsibility of the state includes the payment of the price of the immovable property at the date of loss of ownership. It is not possible to accept that a method such as updating the price paid by the applicant in 1986 corresponds to the real value of the immovable property.
Undoubtedly, in some exceptional cases where the overriding public interest requires it, it may be deemed justifiable not to pay the full value of the immovable property. In the concrete case, however, the existence of a situation justifying the payment of less than the real value of the immovable property to the applicant has not been demonstrated. The cancellation of the title deed by the administration in order to correct its mistake cannot in any way be regarded as a situation justifying the payment of less compensation.
Considering that the applicant was not at fault in the cancellation of the title deed, the payment to the applicant of the value of the immovable at the date of loss of ownership of the immovable, including the part lost against inflation, will ensure that a fair balance is established between the public interest in the protection of forests and the individual interest of the applicant in the enjoyment of the right to property.
Since there is no information in the individual application file regarding the value of the immovable properties on 22/12/2005, it is not possible to assess whether the amount assessed by the Compensation Commission has achieved a fair balance. In this case, it has not been demonstrated by the public authorities that the compensation awarded in favour of the applicant in the present circumstances ensures a fair balance between the individual interest in the protection of the applicant’s right to property and the public interest in the conservation of forests. Therefore, it was concluded that the interference with the applicant’s right to property was disproportionate.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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