CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 21 March 2017   SECOND SECTION Application no. 21591/04 Ahmet DİNÇER against Turkey lodged on 27 April 2004 STATEMENT OF FACTS The applicant, Mr Ahmet Dinçer, is a Turkish national, who was born in 1934 and lives in Istanbul. He is represented before the Court by Mr A.R. Batmazoğlu, a lawyer practising in Istanbul. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant had a plot of land in Ormanlı Village, in the Çatalca District of Istanbul, which had been registered in the land register as plot no.   2, parcel no. 63. The plot of land was located within the maximum protection zone of Terkos Dam (the Dam). From 1995 onwards the applicant’s land was flooded by the overflowing water of the Terkos Dam during certain months of the year. On 14   January 1999 the Administration of the Water and the Drains of Istanbul (the Administration) decided that expropriation of the applicant’s land would be in the public interest because of its location in the protection zone of the Dam. The Administration’s decision of 14   January 1999 was subsequently confirmed by the relevant Ministry. However, the expropriation process was discontinued for an unknown reason. On 27   February 2002 the applicant, considering that his land was expropriated de facto by the Administration, lodged a claim before the Çatalca Civil Court of First Instance and sought compensation for the damage resulting from the de facto expropriation. On 10   May 2002, relying on the expert reports that had been prepared at its request, the Çatalca Civil Court of First Instance awarded the applicant 405,000,000.00 Turkish liras for the de facto expropriation of his land and ordered the land at issue to be entered in the land register in the name of the Administration. In its decision, the court reasoned, inter alia , that the land had remained flooded during at least six months of each year as from 1995, that as a result of floodwaters the land could be cultivated only with rice, and that the yield of the land would be reduced by 60% at least. It also referred to the fact that the Administration had already decided to expropriate the land. On 11   November 2002, on an appeal by the Administration, the Fifth Civil Division of Court of Cassation overturned the court’s judgment. It held that, since it was still possible for the applicant to cultivate the land with rice, there was no permanent impossibility to use the land, and therefore no de facto expropriation. In a judgment of 1   April 2003, disregarding the Court of Cassation’s judgment, the Çatalca Civil Court of First Instance reaffirmed its initial ruling on the ground, inter alia , that the land in question was delimited within the boundaries of the maximum protection zone of the Dam and the Administration was thus under an obligation to expropriate it. On 2   July 2003 the Plenary Court of Cassation (civil divisions) decided to quash the decision of 1   April 2003, holding that the administration did not restrict the applicant’s use of his land permanently. On 24   February 2004, upholding the decision of the Plenary Court of Cassation, the Çatalca Civil Court of First Instance dismissed the applicant’s claim. B.     Relevant domestic law and practice The relevant part of Article   46 of the Constitution reads as follows: “The State and public corporations shall be entitled, where the public interest so requires, to expropriate privately owned real estate wholly or in part or to impose public easements on it, in accordance with the rules and procedures prescribed by law, provided that the actual compensation is paid in advance. ...” In its decision numbered E.2003/5-626 K.2003/637, the Plenary Court of Cassation (civil divisions) examined a case lodged by an individual who had been the owner of another plot of land located in the same area as the applicant’s land. That plot of land had also been flooded by the overflowing water of the Terkos Dam. In that case the Plenary Court of Cassation accepted that the plot of land was de facto expropriated and decided that the market value of the land should thus be paid to the claimant by the Administration. In doing so it relied on the facts that the land had been located within the protection zone of the Dam, that there had not been any dike between the land and the Dam which could protect the land from floodwaters and that the Administration had aimed at interfering with the land permanently as it had already been decided to expropriate it. A similar approach had already been taken by the Fifth Civil Division of the Court of Cassation in its decision numbered E.2000/16511 K.2000/17963. COMPLAINTS The applicant complains under Article 1 of the Protocol No. 1 to the Convention that his right to peaceful enjoyment of his possessions has been infringed. The applicant further complains that he was denied a fair hearing in violation of Article   6 §   1 of the Convention due to contradictory decisions made by the Court of Cassation in similar cases. QUESTIONS TO THE PARTIES 1.     Has the Administration’s decision of 14   January 1999 regarding the expropriation of the applicant’s plot of land been implemented so far? Have there been any other relevant developments in this case? 2.     Did the applicant exhaust all domestic remedies, as required by Article   35 §   1 of the Convention? In particular, was there any other domestic remedy apart from the claim for compensation resulting from a de facto expropriation to redress the applicant’s alleged loss caused by the flooding of his land with water from the Terkos Dam? If so, the Government are invited to provide examples of such cases. 3.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article   1 of Protocol No.   1 to the Convention, as a consequence of the flooding of his land by water from the Terkos Dam? If so, which rule of Article   1 of Protocol No.   1 to the Convention would be applicable, and was the interference justified under that rule? In particular, having regard to the fact that the applicant was not paid any compensation, was a fair balance struck between the applicant’s rights and the general interest? (see, mutatis mutandis , Kutlu and Others v. Turkey , no.   51861/11, §§   49-76, 13   December 2016) 4.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular, having regard to the decision of the Fifth Civil Division of the Court of Cassation numbered E.2000/16511 K.2000/17963, the decision of the Plenary Court of Cassation (civil divisions) numbered E.2003/5-626 K.2003/637 and the decisions rendered by the Fifth Civil Division of the Court of Cassation and the Plenary Court of Cassation in the applicant’s case, was there a contradiction between the decisions of the Court of Cassation regarding the land flooded by the overflowing water of the Terkos Dam, which undermined the principle of legal certainty (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no.   13279/05, §§   49-58, 20   October 2011)?