Individual Application

The Facts

The immovable property bought by the applicant were registered as Treasury property for being a fictious transaction. Subsequently, the applicant successfully filed an action before the civil court for annulment of the registration in the name of the Treasury. The defendant administration appealed the decision on points of fact and law. The regional court of appeal quashed the first-instance decision and delivered a fresh judgment. On appeal, the Court of Cassation upheld the judgment of the regional court of appeal.

The Applicant’s Allegations

The applicant maintained that his right to property had been violated due to the transfer of his immovable property to the State Treasury on the ground that the sale was a fictious transaction.

The Court’s Assessment

In the present case, the civil court found that the sale of immovable property was realised based on the real value. Contrary to the finding of the lower court, the regional court of appeal concluded that the sale transaction cannot be conducted on an instalment basis as to prevailing commercial custom.

The regional court of appeal noted that it was neither challenged nor demonstrated that the possession of the immovable property classified as a plot of land, as well as the sports hall, had been passed over to the applicant by the seller through handover of the keys or any other means. However, no such claim or challenge was raised by the defendant Treasury during the proceedings. Accordingly, the applicant became aware, only after the decision of the regional court of appeal, that the burden of proof in this regard rested on him. Under these circumstances, the applicant was unable to provide an explanation regarding the manner in which he acquired the possession of the immovable property. Nor could he have the opportunity to demonstrate whether such a handing-over procedure was necessary to prove that the impugned sale had not been based on a fictitious transaction.

The regional court of appeal failed to address the applicant’s claims during the proceedings that the liquidated company had performed no activities on the immovable property that could be construed as fictitious transaction; that the decisions of non-prosecution had been issued regarding the company partners; and that the process of purchasing the immovable property and the location of the payment, as well as instalment sale, were consistent with the requirements of business customs. Furthermore, the applicant asserted that the payments had been made after consulting with the relevant administrative authorities, which had also expressed the view that the sale of the disputed immovable property constituted a real transaction, free of collusion. However, the regional court of appeal failed to assess this claim either. Additionally, despite the first-instance court’s inspection and expert reports concluding that the sale had been conducted based on the real value, the regional court of appeal determined that the sale of immovable property on an instalment basis had not complied with the standards of commercial customs. It however failed to demonstrate, in its reasoned decision, how these commercial customs were ascertained.

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