Individual Application

The Facts

The immovable property in dispute, which was formed through the subdivision of a plot registered in the name of M.K., was registered in the applicant’s name in the land registry on 19 November 1990. On 15 May 2008, the General Directorate of Forestry brought an action seeking the annulment of the applicant’s title deed and the registration of the property in the name of the Treasury as forest land, on the grounds that the property had previously been forest and fell within the boundaries of a definitively demarcated forest area. At the end of the proceedings, the incumbent court annulled the applicant’s title deed and ordered the registration of the property in the name of the Treasury as forest land.

Subsequently, the applicant brought an action for pecuniary compensation against the Treasury, while reserving the right to claim any surplus. The applicant amended his initial claim, increasing the amount to 120,976.52 Turkish liras (TRY), which was the amount specified in the expert report obtained during the proceedings. The court ordered the payment to the applicant of the amount specified in the expert report, plus statutory interest to accrue from the date of the institution of the proceedings.

On appeal, the Court of Cassation quashed the decision, stating that the value of the immovable property should have been determined based on the finalisation date of the decision regarding the action for annulment of title deed and registration. Accordingly, the court conducted a new on-site inspection and obtained an additional expert report, which stated that the value of the property as of the finalisation date of the decision on the annulment of title deed and registration was TRY 38,521.12. The court awarded this amount to the applicant, together with statutory interest accruing from the date when the proceedings were instituted. The court also awarded the applicant attorney’s fees amounting to TRY 4,587.32 based on the accepted compensation amount, but also ordered the applicant to pay TRY 9,346.43 as attorney’s fees for the rejected part of his claim, to be transferred to the Treasury. On appeal by both parties, the Court of Cassation rejected the appeals and upheld the first-instance decision. It ordered the payment of attorney’s fees amounting to TRY 2,037 by the applicant to the defendant administration. Accordingly, the total amount the applicant was required to bear for attorney’s fees following the proceedings amounted to TRY 11,383.43.

The Applicant’s Allegations

The applicant maintained that his property rights had been breached due to the insufficient compensation awarded for the annulment of his property title and its registration to the Treasury as forest land.

The Court’s Assessment

In the present case, the incumbent court awarded compensation to the applicant, who claimed to have acquired the property in good faith relying on the land registry, finding that the State was liable for the damage arising from the annulment of the title deed. The applicant, who had been deprived of his property due to annulment of his title deed, was required to bring proceedings against the administration in order to obtain compensation. Therefore, given that the State was ultimately held liable to pay compensation at the end of the proceedings, it was not the applicant who gave rise to the institution of these proceedings.

Another aspect to be assessed in the present case is the proportionality between the attorney’s fees imposed on the applicant and the amount of compensation awarded him. As a result of the proceedings, in which the State was found liable for the damage resulting from the management of the land registry, the applicant was awarded TRY 38,521.12 in pecuniary compensation. However, the applicant was also ordered to pay TRY 11,383.43 in attorney’s fees to the defendant Treasury, in the name of which the property had been re-registered following the annulment of his title deed. This amount corresponds to approximately 29.55% of the compensation awarded.

Besides, it should be noted that in the present case, the applicant increased his initial claim based on an expert report obtained by the incumbent court to assess the value of the property -an issue requiring technical expertise- and relied on in the initial decision. As a result of the subsequent proceedings, during which the court accepted the claim on the basis of a new expert report obtained following the Court of Cassation’s quashing judgment, the State was found liable to pay compensation. Nevertheless, the applicant was ordered to pay attorney’s fees amounting to 29.55% of the compensation awarded. In this regard, it is worth emphasising that the applicant amended his claim on the basis of the initial expert report, which had been obtained by the court and served as the basis for its original decision in a technically complex matter.

Although the court awarded TRY 4,587.32 for attorney’s fees in the applicant’s favour, it should be noted that, pursuant to Attorneys Act no. 1136, this amount is payable by the applicant to his lawyer. Accordingly, the attorney’s fees awarded in favour of the applicant cannot be regarded as a direct pecuniary substitute for the loss suffered by him. Therefore, a comparison between the compensation awarded and the attorney’s fees imposed on the applicant reveals that the applicant was deprived of a significant portion of the compensation, and that the remaining amount fell short of the actual value of the immovable property. In other words, the compensation awarded to the applicant in the proceedings for deprivation of his property was significantly diminished.

In conclusion, it is evident that at the end of the proceedings, the State was held liable for the damage resulting from the annulment of the applicant’s title deed erroneously issued despite the property’s status as forest land. The applicant granted compensation was, however, ordered to pay attorney’s fees – an amount that significantly reduced the compensation amount determined by the courts that were expected to ensure fair balance- to the defendant administration, which cannot be said to have acted in accordance with the principle of good governance under the particular circumstances of the case. This situation placed an excessive individual burden on the applicant, as it led to a significant decrease in the actual value of the property at the time of the interference. Accordingly, the fair balance to be be struck between the applicant’s property rights and the requirements of the public interest underlying the interference was upset to the detriment of the applicant, rendering the interference with his property rights disproportionate.

Consequently, the Court has found a violation of the right to property.