REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
JUDGMENT
RECEP TARHAN AND AFİFE TARHAN
(Application no. 2014/1546)
2 February 2017
On 2 February 2017, the First Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Recep Tarhan and Afife Tarhan (no. 2014/1546).
THE FACTS
[7-39] “Kahraman Kadın” Street, where the real property of which the applicants are the co-owners is located, was closed to vehicles or pedestrians by the decision of 15 March 2001 rendered by Ankara Transportation Coordination Center (ATCC) with a view to providing the security of the Embassy of Israel. Upon the application lodged by the community dwellers, the TCC decided that the blocks and barriers in the street be removed. Yet, this decision has not been executed.
The applicants and the other two community dwellers requested, through the petitions they filed to Ankara Governor’s Office, that the necessary procedures be carried out in order for the decision of ATCC to be executed. Upon the fact that this request was not answered but rejected implicitly by the Governor’s Office, the applicants filed an action with the 3rd Chamber of Ankara Administrative Court for the cancellation of the act of implicit rejection of the request. The decision of 23 February 2007 rendered by the court on the dismissal of the action was upheld on 21 October 2009 by the 8th Chamber of the Supreme Administrative Court; and the request for the rectification of the decision was rejected on 20 January 2010.
Meanwhile, during the meeting of the Plenary Assembly of ATCC held on 30 December 2005, it was decided that the Ankara Governor’s Office be inquired of whether there was a security problem or not in the area where the Embassy of Israel was located. After the Ankara Governor’s Office had delivered such an opinion that the removal of blocks and barriers would constitute a security vulnerability, it was decided by the Plenary Assembly of ATCC on 26 May 2006 that those blocks and barriers which had been determined to be removed previously should remain in place.
According to the statements in the application petition, once the street was closed by barriers on 1 December 2003, the applicants who had earlier rented their real properties located in the aforesaid place for 3,000 TRY (“Turkish Liras”) per month had to reduce the rental price to TRY 1,000 with a view to settling with the tenant. Even though the applicants reset the rental price which they had received as TRY 1.000 for 49 months as 3.000 TL as of 1 January 2008, the rental contract was terminated on 31 August 2008 and the real property was evacuated de facto since the tenant could not do any business.
The applicants lodged an application with the 9th Chamber of the Ankara Administrative Court and requested the cancellation of the procedure carried out by ATCC on 26 May 2006 and of the decision rendered by the Governor’s Office which constituted the basis of this procedure. The Court decided on the cancellation of the procedure through its decision of 31 March2010. It was underlined in the reasoning of the decision that implementation of the measure of closing the street by barriers without a detailed research and examination by the administration, without predicating on concrete facts justifying the restriction but merely considering the existence of the potential danger, was contrary to law. It is indicated in the decision appealed by the defendant Administration that occurrence of certain serious incidents which would point out the necessity of the afore-mentioned measures found, by the judgment of 6 May 2011 rendered by the 8th Chamber of the Supreme Administrative Court, to be taken –without any hesitation - for ensuring the security of the Embassy of Israel, and making of concrete assessments would be contrary to the ordinary flow of life and the nature of diplomatic relations.
The first instance court, having abided by the judgment rendered by the Chamber, rendered a dismissal decision on the same grounds. The request of appeal filed against the mentioned decision was rejected on 4 June2013 and the request for the rectification of the decision was rejected on 6 November 2013; and the decision then became final.
The applicants brought a full remedy action before the 15th Chamber of the Ankara Administrative Court against the Ankara Governor’s Office and the Ankara Metropolitan Municipality and claimed pecuniary and non-pecuniary damages of TRY 210,000 and TRY 5,000 respectively, plus any statutory interest. The first instance court decided to dismiss the action through its decision of 15 June 2011. In the decision, the liability of the administration based on fault (tort liability) was discussed but no discussion was held as to whether principles of absolute liability would be applied in the incident or not.
The 8th Chamber of the Supreme Administrative Court, rejecting the applicants’ request of appeal through its judgment of 1 November 2012, upheld the decision. The request for the rectification of the decision where the same allegations of the applicants were set forth was also rejected by the same Chamber by its judgment of 6 November 2013.
40. The Constitutional Court, at its session of 2 February 2017, examined the application and decided as follows:
1. The Applicants’ Allegations
41. The applicants alleged that there was a violation of their right to property, stating that their rental income obtained from the immovable property had been reduced since the street on which the property, leased out as a workplace, was located was closed to pedestrian and vehicular traffic.
42. The applicants asserted that closing a street to vehicles and pedestrians with a view to protecting an Embassy of a foreign state did not comply with the principle of being a social state of law. They added that, in case of an obligation to take such a measure on this ground, the consequences thereof should be compensated in accordance with the principle of balancing equity.
43. The applicants complained that, even though they had asserted during the proceedings that the damages arising from the acts and actions of the administration should be compensated without seeking the condition of fault (tort) pursuant to the last paragraph of Article 125 of the Constitution, this issue was discussed neither by the first-instance court nor by the Supreme Administrative Court in their decisions.
44. The Ministry did not submit any observations.
45. Article 35 of the Constitution on the “Right to property”, which will be taken as a basis for the assessment of the alleged violation, reads as follows:
“Everyone has the right to own and inherit property.
These rights may be limited by law only in view of public interest. The exercise of the right to property shall not contravene public interest.”
46. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16).
47. As the applicants’ allegation that neither the first-instance court nor the Supreme Administrative Court deliberated upon the applicants’ assertion in the trial process that the damages arising from the acts and actions of the administration should be compensated without seeking the condition of fault (tort) pursuant to the last paragraph of Article 125 of the Constitution concerns the proportionality of the interference with the right to property, the Court considers that this allegation must be examined from the standpoint of the right to property.
48. The alleged violation of the right to property was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
i. Existence of Property
49. The right to property is guaranteed under Article 35 § 1 of the Constitution, which stipulates that “Everyone has the right to own and inherit property”. The right to property safeguarded by the said Article of the Constitution encompasses the rights over any kind of assets which represents an economic value and is assessable with money (see the Court’s judgment no. E.2015/39, K.2015/62, 1 July 2015, § 20). In this framework, along with movable and immovable properties, which undoubtedly have to be considered as property, the limited real rights and intellectual property rights established over those properties as well as any enforceable claims fall within the scope of the right to property.
50. The right to property enshrined in Article 35 of the Constitution is a safeguard that protects existing possessions, properties and assets. A person’s right to obtain a property which is not already owned by that person does not fall within the notion of the property protected by the Constitution, no matter how strong his or her interest is in this matter. As an exception to this, an “economic value” or a “legitimate expectation” to obtain an enforceable “claim” may benefit from the guarantee of the right to property which is protected under certain circumstances. The legitimate expectation is a sufficiently concrete expectation that arises from an enforceable claim that has been reasonably demonstrated, that is based on a certain provision provided for in the national law or an established case-law which indicates that the prospects for success are high. The existence of an unsubstantiated expectation to acquire a right or a claim which may only be raised within the scope of the right to property is not enough to acknowledge a legitimate expectation (see Kemal Yeler and Ali Arslan Çelebi, no. 2012/636, 15 April 2014, §§ 36 and 37).
51. The subject matter of the present complaint is the fact that the applicants received less rental income than they should have received since their immovable property was leased out at a rent lower than the market value due to an act of the public administration. The applicants’ complaint does not concern a right to claim in a narrow and technical sense but rather the power to benefit from the fruits which the right to property provides for the owner.
52. As is known, the right to property entitles the owner to the powers to use the thing he owns, benefit from its fruits, and dispose of that thing. In this context, “fruit” stands for the economic value that comes into being in addition to the net worth of the property as a result of its utilization or use in line with its purpose and function; and “the power to benefit from the fruit” indicates the fact that this economic value belongs to the owner. Benefiting from the fruits bears an economic value in and of itself as an intangible power/right; it is not required to actually produce an economic value to that end. In other words, even the capacity of the “thing” to produce additional value is inherent in the right to property established over the principal property. In the light of the above, the Court has concluded that, although it did not turn into a concrete rent claim, the economic loss incurred by the applicants as they were unable to lease out their immovable property at the actual market value due to an act of the public administration must be considered as property.
53. The right to property safeguarded as a fundamental right under Article 35 of the Constitution is such a right that enables an individual to use the thing he owns, benefit from its fruits, and dispose of that thing provided that he does not prejudice the rights of others and respects the restrictions imposed by law (see Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 32). Therefore, restricting any of the owner’s powers to use his property, benefit from its fruits, and dispose of the property constitutes an interference with the right to property.
54. In the case giving rise to the present application, the immovable property which was owned by the applicants and leased out as a workplace was leased at a rate lower than the market value because the street on which it is located was closed to vehicular and pedestrian traffic. Consequently, the applicants earned less rental income than they normally should have. It is clear that the economic loss suffered by the applicants by earning less rental income due to the act of the administration constitutes an interference with the right to property.
55. In view of Article 35 of the Constitution read together with other articles that touch upon the right to property (Article 43 on the coasts; Article 44 on land ownership; Article 46 on expropriation; Article 63 on the protection of historical, cultural and natural assets; Article 168 on natural wealth and resources; Articles 169 and 170 on forests; and Articles 28 § 8, 30, and 38 § 10 concerning confiscation), the Constitution lays down three rules in regard to interference with the right to property. The first paragraph of Article 35 of the Constitution provides that everyone has the right to property, setting out the “right to peaceful enjoyment of possessions”, and the second paragraph draws the framework of interference with the right to peaceful enjoyment of possessions.
56. Article 35 § 2 of the Constitution lays down the circumstances under which the right to property may be restricted in general and also draws out the general framework of conditions of “deprivation of property”. Furthermore, Article 46 of the Constitution regulates a particular method of deprivation of immovable property, which is the expropriation procedure.
57. The last paragraph of Article 35 of the Constitution forbids any exercise of the right to property in contravention to the interest of the public; thus, it enables the State to control and regulate the enjoyment of property. The fact that the right to property cannot be exercised in contravention to public interest requires the State to ensure that the enjoyment of property complies with public interest. This, therefore, necessitates the acknowledgement that the State has the power to control the use of property. Moreover, Article 43 on the coasts, Article 44 on land ownership, Article 63 on the protection of historical, cultural and natural assets, Article 168 on natural wealth and resources, Articles 169 and 170 on forests, as well as Articles 28 § 8, 30, and 38 § 10 concerning confiscation encompass other specific constitutional provisions that enable the State to control property.
58. Deprivation of property and regulation/control of property are specific forms of interference with the right to property. An interference in the form of deprivation of property involves the loss of ownership. Whereas in the control of the use of property, the ownership is not lost but the way how the owner will use the powers he is granted by the right to property will be determined or limited on the basis of public interest. Interference with the right to peaceful enjoyment of possessions is a general kind of interference. Any “meddling” other than deprivation of property or control of the use of property should be examined under the framework of interference with the right to peaceful enjoyment of possessions. In addition, the “meddlings” of especially the public authorities which do not directly target the use of property but impact the right to property in terms of consequences should be regarded as interference with the right to peaceful enjoyment of possessions.
59. The subject matter of the dispute at hand arose from the fact that the street on which the applicants’ immovable property is located was closed to pedestrian and vehicular traffic. The closure of the street to pedestrians and vehicles is not a direct regulation over the right to property with regard to the immovable property but it, in fact, concerns the freedom of movement. The reduction in the applicants’ rental income from the property in question is an indirect consequence of the restriction imposed on the freedom of movement. Therefore, the interference performed cannot be considered as control of property. For this reason, the Court has concluded that the interference with the right to property resulting from the restriction imposed on the freedom of movement should be examined within the scope of the first rule, i.e. “peaceful enjoyment of possessions”.
60. Article 35 of the Constitution does not envisage the right to property as an unlimited right; accordingly, this right may be limited by law and in the interest of the public. In interfering with the right to property, Article 13 of the Constitution must also be taken into consideration as it governs the general principles concerning the restriction of fundamental rights and freedoms.
61. Article 13 of the Constitution provides as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”
62. Pursuant to the article cited above, fundamental rights and freedoms may only be restricted by law, on the basis of the reasons laid down in relevant articles of the Constitution, and in conformity with the requirements of a democratic order of the society and the principle of proportionality. In order for the interference with the right to property to be in compliance with the Constitution, the interference must have a legal basis, pursue the aim of public interest, and be carried out in accordance with the principle of proportionality.
63. The measure involving the closure of the street on which the applicants’ immovable property is located to pedestrian and vehicular traffic, which constituted an interference with the applicants’ right to property in the present case, was based on the Vienna Convention on Diplomatic Relations of 18 April 1961 which became a part of Turkish law upon its ratification by the Law no. 3042 and dated 4 September 1984. Article 22 § 2 of this Convention reads “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”. The inferior courts found the administrative act, imposed on the basis of this rule, in conformity with law. Finding no reasons to rule that this finding of the inferior courts was not proper, the Court has considered that the interference had a legal basis.
64. According to Article 35 of the Constitution, the right to property may only be restricted in the interest of the public. There is obviously public interest in taking measures to ensure the security of buildings of the diplomatic missions as a requirement of the obligations of the Republic of Turkey originating from international treaties. Therefore, the Court has concluded that the closure of the street on which the Embassy of Israel is located to pedestrian and vehicular traffic, which is understood to be a measure taken in this framework, pursued a constitutionally legitimate aim.
(a) General Principles
65. Proportionality, which is one of the criteria to be taken into account in restricting the rights and freedoms under Article 13 of the Constitution, stems from the principle of state of law. Since the restriction of rights and freedoms in a state of law is an exceptional power, it may only be justified on the condition that it is used to the extent that is required in the situation. Imposing restrictions on individuals’ rights and freedoms to a degree that is more than what is required by the circumstances of the case would mean exceeding the limits of power enjoyed by the public authorities and, therefore, be incompatible with the state of law (see the Court’s judgment no. E.2013/95, K.2014/176, 13 November 2014).
66. The principle of proportionality comprises of three sub-principles, which are “suitability”, “necessity” and “proportionality”. “Suitability” means that the prescribed interference is suitable for achieving the aim sought to be achieved; “necessity” means that the interference is absolutely necessary for the aim pursued, in other words, it is impossible to attain the same aim with a less severe interference; and “proportionality” refers to the need for striking a reasonable balance between the interference with the individual’s right and the aim sought (see the Court’s judgments no. E.2011/111, K.2012/56, 11 April 2012; no. E.2012/102, K.2012/207, 27 December 2012; no. E.2012/149, K.2013/63, 22 May 2013; no. E.2013/32, K.2013/112, 10 October 2013; no. E.2013/15, K.2013/131, 14 November 2013; no. E.2013/158, K.2014/68, 27 March 2014; no. E.2013/66, K.2014/49, 29 January 2014; no. E.2014/176, K.2015/53, 27 May 2015; no. E.2015/43, K.2015/101, 12 November 2015; no. E.2016/16, K.2016/37, 5 May 2016; no. E.2016/13, K.2016/127, 22 June 2016; and Mehmet Akdoğan and Others, cited above, § 38).
67. The right to property set out in Article 35 of the Constitution also imposes certain positive obligations on the State. While positive obligations, as a rule, provide constitutional protection against interferences performed by private persons, the State may have certain positive procedural obligations also in cases of any interference by public authorities. These include legal, administrative and actual measures that remove, in other words offer reparation for, the interference performed by the public authority.
68. Where there is an interference with the right to property carried out by public authorities, not only is it a requirement of the State’s positive obligations to create a set of administrative or judicial legal mechanisms capable of restitution if possible, i.e. removal of the negative consequences for the owner arising from this interference to reinstate the original state of affairs, or compensation of the owner’s loss and damages, but also the existence of such mechanisms is a matter to be taken into account in the assessment on the proportionality of the interference. In this context, the interference may be found in breach of the principle of proportionality if such a reparative mechanism has never been created or the mechanism in force lacks the capability of offering restitution to the state prior to the interference or redress for the damages incurred.
(b) Application of Principles to the Present Case
69. In the present case, it is clear that closure of the street to pedestrian and vehicular traffic in front of the Embassy of Israel is capable of achieving the aim of ensuring the security of the Embassy in question.
70. It is primarily within the powers of the relevant public authorities to assess whether the closure of the street to pedestrians and vehicles would lead to a security vulnerability or whether the security concern at issue would necessitate the street to be closed to pedestrians and vehicles. The authorised administrations are responsible for the effective and efficient conduct of security services; therefore, the responsible and competent authorities are in a better position to decide which measures should be taken in order to offer the best service in this regard. For this reason, the administrations enjoy discretionary powers to a certain extent with respect to the measures to be implemented. Nonetheless, this discretion enjoyed by the administrations in regard to the necessity of the means chosen is not an unlimited power. Where the means chosen has aggravated the interference distinctly in comparison with the aim it sought to achieve, the Constitutional Court may conclude that the interference was not necessary. However, the Constitutional Court’s review in this context is not directed towards the degree of appropriateness of the means chosen but the gravity of its interference with rights and freedoms.
71. In the case giving rise to the application, setting up a barrier to close off the street as a measure did not aggravate the interference distinctly when compared to the aim of ensuring the security of the Embassy of Israel. Hence, there is no reason to reach a conclusion different than that of the public authorities regarding the necessity of the interference.
72. The essential criterion of the principle of proportionality to be taken into account in the instant case is how proportionate the interference was. In cases where the prescribed measure imposes an extra-ordinary and excessive burden on the owner, the interference cannot be considered as proportionate. Therefore, the Court must examine whether the measure in question imposed an excessive and disproportionate burden on the applicants.
73. The applicants contended that the closure of the street on which the immovable property they rented out was located to pedestrian and vehicular traffic significantly reduced the property’s potential to be rented at the market value under normal circumstances. They enclosed certain bank receipts with their petition, which indicated that their rental income decreased from TRY 3,000 to TRY 1,000 over the period following the implementation of the measure. The competent authorities did not object to the fact that the rental income from the immovable property decreased. Nor did the inferior courts reached any finding to the contrary.
74. If a certain number of people have to bear the negative consequences of an interference by public authorities, which is performed for public interest and whose results appeal to the whole society, this may impair the balance to be struck between the public interest sought to be achieved via the interference and the rights of individuals as well as may place an excessive and unbearable burden on the individual. Given that the positive outcomes sought in implementing the measure benefit the whole society, the burden borne by the person or persons whose right was interfered with must be shared by the whole society, thereby striking a fair balance between the aims of public interest and the protection of the individuals’ right to property. Otherwise, only a certain person or group of persons will have to bear the burden stemming from an act or action of the administration while the whole society benefits from its products. In other words, the persons subjected to an interference with their right might face the obligation to sacrifice more than other members of the society. This would not be compatible with the principle of democratic state of law based on equality of individuals.
75. It is obvious that the decrease in the economic value yielded from the immovable property due to the decrease of rental income imposed a burden on the applicants. It is a requirement of the principle of proportionality to compensate for the burden imposed on the applicants with the measure involving the closure of the street on which the Embassy of Israel is located to pedestrian and vehicular traffic as a requirement of the obligations of the Republic of Turkey arising from the international law. Nevertheless, the first-instance court dismissed the case on the ground that the administration had not had any service fault, without giving the applicants a chance to prove the existence of the damage or the causal link between the act/action and the damage. This interpretation made by the trial court which limited the administration’s liability to finding of a fault prevented the applicants’ burden to be alleviated and balanced.
76. However, the right to property guaranteed under Article 35 of the Constitution requires that, even in cases where the interference is prescribed by and in conformity with the law, the owner must be afforded a set of possibilities capable of balancing his interest. Such possibilities aimed at protecting the owner’s interest at the same time may, though not necessarily, include payment of compensation under the circumstances of the case in issue. Even though it is within the trial court’s discretion to decide whether it is necessary to award compensation depending on the conclusion to be reached with regard to the existence of the damage and the causal link between the interfering measure and the damage, the fact that compensation was bound to a condition of existence of fault prevents carrying out a proportionality test from the very beginning.
77. The principle of balancing sacrifices which has been developed via case-law and implemented by both the Joint Administrative Chambers of the Supreme Administrative Court and other chambers of the Supreme Administrative Court for many years is capable of striking a reasonable balance between the applicants’ right to property and the public interest aims pursued by the measure constituting an interference with the right, thus having the quality and sufficiency to offer reparation for the burden imposed on the applicants. In accordance with this principle of balancing sacrifices, it is possible to compensate, provided that other criteria are also satisfied, for the damages suffered due to administrative acts and actions, even if those are lawful. In the present case, however, no deliberation was held as to whether the application criteria of this principle were met although it had been raised by the applicants.
78. In conclusion, since the trial court sought the condition of finding of a fault on the part of the administration in order to hold an examination as to the existence of a damage and a causal link in the action for compensation brought by the applicants wishing to claim redress for the damage allegedly incurred due to the street’s closure to pedestrians and vehicles, the applicants were deprived of the possibility of receiving compensation by proving the existence of the damage and the causality between the administration’s act and the damage; hence, they were deprived of the possibility of balancing the burden imposed on them. The fact that the applicants were forced to bear the burden arising from this measure taken for the benefit of the whole society has resulted in the disturbance, to the detriment of the owner, of the reasonable balance needed to be struck between the aim of public interest and the owner’s right to property. Thus, it has rendered the interference with the right to property disproportionate.
79. For these reasons, it must be held that there was a violation of the right to property protected under Article 35 of the Constitution.
80. Having regard to its finding of a violation above, the Court has not considered it necessary to examine the remainder of the applicants’ allegations.
81. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...
(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
82. The applicants requested finding of a violation and claimed 210,000 Turkish liras (“TRY”) in respect of the pecuniary damages they suffered due to the decrease in their rental income as well as TRY 17,200 which was paid to the administration for lawyer’s fees, plus the statutory interest running from the date of filing of the action to the date of payment, or remission of the judgment to the first-instance court for a retrial.
83. The Court found a violation of the applicants’ right to property.
84. Since there is legal interest in holding a retrial to remove the consequences of the violation of the right to property, a copy of the judgment must be remitted to the 15th Chamber of the Ankara Administrative Court for a retrial.
85. The total court expense of TRY 2,212.20 including the court fee of TRY 412.20 and counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed jointly to the applicants.
For these reasons, the Constitutional Court held UNANIMOUSLY on 2 February 2017 that
A. The alleged violation of the right to property be DECLARED ADMISSIBLE;
B. The right to property safeguarded by Article 35 of the Constitution was VIOLATED;
C. There is NO NEED TO EXAMINE other allegations of the applicants;
D. A copy of the judgment be REMITTED to the 15th Chamber of the Ankara Administrative Court for a retrial to remove the consequences of the violation of the right to property;
E. The total court expense of TRY 2,212.20 including the court fee of TRY 412.20 and the counsel fee of TRY 1,800 be JOINTLY REIMBURSED TO THE APPLICANTS;
F. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and
G. A copy of the judgment be SENT to the Ministry of Justice.
