Deprive of the property and just satisfaction in the context of the protection of the cultural heritage
Uzun, Bayram & Nida Celik
In Turkey, in accordance with the Cultural and Natural Heritage Protection Act (Law no. 2863) and provisions in the national legislation regarding expropriation, 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. The European Court of Human Rights (ECHR) decisions emphasize 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. In this system, because of the taking of property without payment of an amount reasonably related to its value normally constitutes a disproportionate interference under Article 1 of Protocol No. 1, applicants who apply to the Court for increased compensation, have received huge amount of additional compensation. In this situation it is clear that interested parties of the Convention have sustained pecuniary damages
Event: FIG Working Week 2012 : Territory, environment, and cultural heritage
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