EHRM, 19-02-2009, nr. 2334/03

The applicant complained that there had been an interference with his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1, in that the overall amount of expropriation compensation awarded by the domestic courts did not correspond, in his opinion, to the real value of the expropriated property. He submitted, inter alia, that Turkish legislation did not enable him to obtain adequate compensation, in the absence of legal criteria for determining the value of buildings making up the country's cultural and historical heritage, such as the one which he formerly owned.

The Government noted at the outset that the instant case related exclusively to the building previously owned by the applicant. At the close of judicial proceedings the latter had received separate compensation for the land on which the building was situated. This was an important factor, not only for valuation of the alleged damage, but also for the assessment of the various proceedings brought by the applicant.

The Government specified that under the Cultural and Natural Heritage (Protection) Act (Law no. 2863 of 21 July 1983) buildings of cultural or artistic interest which belonged to individuals were considered to be State property, in the same way as those that belonged to public establishments, on the ground that they were part of the population's common heritage. Consequently, their owners had only limited property rights over them, in the sense that such rights applied only to the land on which the buildings were situated.

The Government further relied on the necessity for the public authorities to take appropriate measures to preserve such properties for future generations. To this end, they could either expropriate them and assume responsibility for their conservation and restoration, or they could classify them as ‘historical sites’; however, the latter procedure entailed multiple restrictions on the right of property, as the owners were then subject to draconian obligations concerning the use of the property in question.

The Government submitted that the building in question, which was located in a classified zone, had been expropriated in the context of the ‘Project for the environmental rehabilitation and regeneration of the streets around St Paul's Well’. They alleged that even if the authorities had not expropriated it, its value would have diminished considerably on account of its classification as a protected property. The applicant would thus have been obliged to sell it at a price significantly lower than the amount received in compensation for the expropriation.

In conclusion, the Government considered that, having regard to the margin of appreciation left by Article 1 of Protocol No. 1 to the national authorities, the compensation awarded by the domestic courts had been reasonably related to the value of the expropriated property, which, on account of its historical and/or artistic features, was, they argued, part of the common heritage.

An interference with the right to the peaceful enjoyment of possessions must achieve a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, among other authorities, Sporrong and Lönnroth, cited above, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as awhole, including, therefore, the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 38, Series A no. 332; The former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 89–90, ECHR 2000-XII; Sporrong and Lönnroth, cited above, § 73; and Beyeler, cited above, § 107).

Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference. Article 1 of Protocol No. 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of ‘public interest’ may call for less than reimbursement of the full market value of the expropriated property (see, mutatis mutandis, Lithgow and Others v. the United Kingdom, 8 July 1986, § 121, Series A no. 102; Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004-V; and Scordino v. Italy (no. 1)[GC], no. 36813/97, § 95, ECHR 2006-…). In the Court's view, the protection of the historical and cultural heritage is one such objective.

In the instant case, having regard to the fact that it has already been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary, the lack of full compensation does not make the taking of the applicant's property eo ipso wrongful (see, mutatis mutandis, Scordino (no. 1), cited above, § 99), particularly as the measure was adopted in the context of a programme for the protection of the country's cultural heritage. It therefore remains to be determined whether, in deciding the criteria and arrangements for compensation of the applicant in this case, the domestic authorities upset the requisite fair balance and whether the applicant had to bear a disproportionate and excessive burden.

The Court notes that a panel of experts initially set the expropriation compensation to be awarded to the applicant at TRL 39,186,865,000, without taking into account the historical and cultural value of the building in question (see paragraph 12 above). In a judgment of 15 June 2001, the district court, to which the applicant had appealed, endorsed the valuation made by two panels of experts, which had assessed the value of the building at TRL 90,724,294,000, a sum that they subsequently increased to TRL 181,448,588,000, stating that the building's architectural, historical and cultural features justified a 100% increase in its value (see paragraphs 15-18 above). This judgment, however, was quashed by the Court of Cassation, which, referring to section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), held that a building's architectural or historical features, or those arising from its rarity, could not be taken into consideration in determining its value (see paragraph 13 above).

Thus, in application of section 15 (d) of Law no. 2863 (see paragraph 28 above), neither the rarity of the expropriated building nor its architectural or historical features were taken into consideration in calculating the amount of expropriation compensation. In this regard, the Court can accept the Government's argument emphasising the difficulties inherent in calculating the market value of properties classed as being of cultural, historical, architectural or artistic value. The determination of this amount may depend on numerous factors, and it is not always easy to assess it through comparisons with properties on the market that do not have the same status or the same architectural and historical features. It considers, however, that these difficulties cannot justify a failure to take these features into consideration in any way.

In this connection, the Court notes that, in application of section 11 of Law no. 2942 (see paragraph 29 above), the experts responsible for assessing the price of a property that is to be expropriated take into consideration all the objective criteria likely to influence its value. It further notes that, in the instant case, two expert reports concluded that the features of the property in question justified a 100% increase in its valuation (see paragraphs 15-18 above) and that, accordingly, the expropriation compensation fixed by the first panel of experts, which had not taken its architectural and historical features into account, was insufficient, especially given the good condition in which the building had been maintained by its owners. It follows that the applicant could have obtained a compensation award considerably higher than that which he received had the specific features of his property been taken into account in calculating the expropriation compensation.

The Court considers that the issue at the heart of the case is the fact that, when calculating the expropriation compensation for a listed property, it is impossible under Turkish law to take into account that part of a property's value that results from its rarity and its architectural and historical features. The Turkish legislature has deliberately set limits on such valuations by excluding the taking into account of such features. Thus, even where the latter seem to imply an increase in the price of the listed property, the domestic courts cannot take them into consideration. In contrast, however, it appears from the Court of Cassation's case-law that where the value of an expropriated property has decreased on account of its registration as a listed building, the courts take such depreciation into account in determining the compensation to be awarded (see paragraph 30 above).

The Court notes that this valuation system is unfair, in that it places the State at a distinct advantage. It enables the depreciation resulting from a property's listed status to be taken into account during expropriation, while any eventual appreciation is considered irrelevant in determining the compensation for expropriation. Thus, not only is such a system likely to penalise those owners of listed buildings who assume burdensome maintenance costs, it deprives them of any value that might arise from the specific features of their property.

Moreover, the Court, like the Chamber, observes that the practice of a number of Council of Europe member States in the area of expropriation of listed buildings indicates that, despite the absence of a precise rule or common criteria for valuation (see paragraph 34 above), the option of taking into account the specific features of the properties in question when ascertaining appropriate compensation is not categorically ruled out.

In the light of the foregoing, the Court therefore considers that, in order to satisfy the requirements of proportionality between the deprivation of property and the public interest pursued, it is appropriate, in the event of expropriation of a listed building, to take account, to a reasonable degree, of the property's specific features in determining the compensation due to the owner.

There has accordingly been a violation of Article 1 of Protocol No. 1.