REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
JUDGMENT
İRFAN ÖZTEKİN
(Application no. 2014/19140)
5 December 2017
On 5 December 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 İrfan Öztekin (no. 2014/19140).
THE FACTS
[7-33] The immovable, which is located in the Kozluk District of Batman and where there is a structure including a house, animal shelter, storehouse and 15-year old fruit trees, is registered in the applicant’s name in the land registry record. This structure with no building license and occupancy permit has been utilizing electricity and water as a subscriber.
During the foundation excavation works for the construction of a Regional Boarding Primary School, a landslide took place on 1 July 2005, which caused damage to the fruit trees and the building constructed by the applicant on his immovable property.
Along with the criminal proceedings which were conducted against those responsible, the applicant brought an action for compensation against the relevant administrations. The applicant’s claim for compensation for the damaged fruit trees was accepted by the inferior courts. However, his claim for compensation for the building he had constructed was rejected although it had become uninhabitable as a result of the landslide. The main reasons given by the first instance court in rejecting his claim were based on the fact that the building had not had a building licence or occupancy permit. The first instance court arrived at the conclusion that the applicant could not claim compensation due to an unlawfully-built structure which had to be had demolished.
Thereafter, the applicant appealed the first instance decision; however, it was ultimately upheld by the Supreme Administrative Court. The applicant’s request for rectification of the judgment was also dismissed by the Supreme Administrative Court, thereby rendering it final.
The applicant then lodged an individual application.
34. The Constitutional Court (“the Court”), at its session of 5 December 2017, examined the application and decided as follows:
35. The applicant indicated that his house was also registered in the land registry record of the immovable property under his ownership. Adding that this immovable property fell within the housing area previously designated in the zoning plan, the applicant asserted that his house was a building that could be licensed. The applicant maintained that no public initiative was taken in terms of zoning or urban planning in Kozluk district and that 99% of the structures in the district lacked building licences. The applicant emphasised that the faulty administration’s refusal to compensate for the damage caused to the structure, even if it was not licensed, contravened the judgments of the European Court of Human Rights (“the ECtHR”). The applicant drew attention to the fact that, even without a licence, the building on his immovable property was connected to the electricity and water networks and received municipal services and he underlined that his house was damaged due to the uncontrolled foundation excavation conducted by the administration. The applicant considered that expecting him to bear all of the damage incurred despite these would be incompatible with the rule that the administration must be accountable for the services it conducted; therefore, he alleged that there had been a violation of his right to property.
36. Article 35 of the Constitution, which will be taken as a basis of the assessment on the allegation, 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.”
37. The alleged violation of the applicant’s right to property must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
a. Existence of Property
i. General Principles
38. A person complaining that his/her right to property has been violated must prove in the first place that such a right existed in the first place (see Mustafa Ateşoğlu and Others, no. 2013/1178, 5 November 2015, §§ 49-54). 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 non-material rights established over those properties as well as any enforceable claims fall within the scope of the right to property (see Mahmut Duran and Others, no. 2014/11441, 1 February 2017, § 60).
39. The right to property safeguarded by the Constitution is a fundamental right that protects existing properties, possessions and economic values. A person’s entitlement to gain property rights over a possession which he does not already own, irrespective of how strong the interest he may have in this regard, does not fall within the meaning of the concept of property (see Kemal Yeler and Ali Arslan Çelebi, no. 2012/636, 15 April 2014, § 36).
40. It is possible in some situations for an economic interest originating from the use of structures built in contravention to regulations/plans related to urban planning on immovable properties (land) that are considered as public property to constitute a possession/property within the meaning of Article 35 of the Constitution. In this scope, where the formation of a social environment and a family environment has been allowed in such places that could have been demolished by administrative authorities at any time on account of the fact that they had been built in contravention to urban planning regulations but no initiative to that effect nor any measures were taken and the situation was let to persist for a long time while, at the same time, the structure at issue was held subject to taxation or granted access to public services, the economic value originating from the use of the structure built must be considered as a “possession” due to its significant asset value within the framework of Article 35 of the Constitution (see Nazif Kılıç, no. 2014/5162, 15 June 2016, § 35).
41. In the case of Nazif Kılıç, the Court drew attention to the fact that the rudimentary house had been had built by the applicant and that it had been in his use for a long time. In that judgment, the Court acknowledged the applicant’s right to property by indicating that while the administration had had the possibility and resources to demolish the illegally-built rudimentary house and remove the trees planted without permission, it had not taken any action for a long time but still provided municipal services to that structure, thereby allowing a social and family environment to be formed in that area. According to the Court, the use of the rudimentary house demolished and the trees removed had constituted a significant economic interest in respect of the applicant (see Nazif Kılıç).
42. On the other hand, the case of Ayşe Öztürk (no. 2013/6670, 10 June 2015, § 85) concerned the demolition of a house located on an immovable property bound with a title allocation deed (tapu tahsis belgesi) without payment of compensation. In that judgment, as well, the Court underlined that the applicant had built and used the building on a piece of land allocated to the applicant by means of a title allocation deed. The Court continued that the Treasury had not prevented either the construction or use of the building and that the real estate taxes regarding the building had indeed been collected. Having regard to the fact that the building on the land in question had been built and used by the applicant and that the Treasury had not objected to that situation, the Court concluded that the applicant had property rights over the building.
ii. Application of Principles to the Present Case
43. In the case giving rise to the present application, the immovable property (land) under the building at issue was registered in the name of the applicant in the land registry. During the foundation excavation works for the construction of a Regional Boarding Primary School, a landslide took place on 1 July 2005, which caused damage to the fruit trees and the building constructed by the applicant on his immovable property. The applicant’s claim for compensation for the damaged fruit trees was accepted by the inferior courts and the applicant has not raised any complaints in this regard. On the other hand, the applicant’s claim for compensation for the building he had constructed was rejected although it had become uninhabitable as a result of the landslide. The main reasons given by the inferior courts in rejecting his case were based on the fact that the building had not had a building licence or occupancy permit. Indeed, as acknowledged by the applicant, the damaged building in question did not have a building licence or an occupancy permit. The applicant has recognised this fact.
44. Nonetheless, the applicant maintained that he had had this building constructed and it had been granted subscription to electricity and water services in 1982; he had lived in this building with his family without facing any obstacles and had used all the municipal services until the landslide incident in 2005. On the basis of the information and documents enclosed with the application form, the Court observes that a water service subscription (no. 2524) was executed between the applicant and the Municipality and the building was connected to an electricity subscription on 1 January 1983. In fact, the immovable property accommodated a number of nearly 15-year old fruit trees as of 2005. What is more, the land registry record of the immovable property shows that it was registered as a “load-bearing masonry house and its yard”. Furthermore, it is observed that the structure located on the immovable property was indicated on the zoning status map submitted by the applicant. From this standpoint, there is no question that the structure in question was built and used for a long time by the applicant.
45. Although the public authorities enjoy wide discretionary powers with regard to making planning and zoning implementation within the framework of modern urban planning principles, the public authorities are required to use these powers in a timely, reasonable and consistent manner. In the present case, however, not only did the administration fail to show any initiative for a long time, despite having the necessary means, to demolish this structure that was understood to have been built clandestinely, but also a social and family environment was allowed to be formed in this building by offering municipal services from at least 1983 to the landslide of 2005, i.e. approximately 22 years. There is no doubt that the use of this building constitutes a significant economic interest for the applicant and his family who had lived in the said building for such a long period of time. In view of the public authorities’ passive position which gave rise to uncertainty, the applicant could not be expected to foresee that this situation might change in an instant. Besides, Article 32 of Law no. 3194 allowed for a possibility of rendering the structure compliant with zoning regulations upon a warning to be issued by the municipality. Therefore, the Court acknowledges that the applicant had the right to property as the use of the building at issue for such a long time constituted a significant economic interest for the applicant.
46. In view of Article 35 of the Constitution read together with other articles that touch upon the right to property, the Constitution lays down three rules in regard to interference with the right to property. In this respect, 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. 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”. 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. Certain other articles of the Constitution also contain special provisions that enable the State to have control over property. It should further be pointed out that deprivation of property and regulation/control of property are specific forms of interference with the right to property (see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February 2017, §§ 55-58).
47. The structure belonging to the applicant was damaged due to a landslide that took place during the construction of a school conducted by the Governor’s Office. Therefore, there has been a clear interference with the applicant’s right to property in the present case since the impugned damage is understood to have been caused during an activity under the direct conduct of public authorities. This interference with the applicant’s right to property does not bear the nature of deprivation of property, neither does it pursue an objective such as the control or regulation of the use of property in the interest of the public. In this case, the interference must be examined within the framework of the first rule concerning the principle of “peaceful enjoyment of possessions”.
48. 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.”
49. 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. 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 public interest, and be carried out in accordance with the principle of proportionality (see Recep Tarhan and Afife Tarhan, § 62).
50. Article 35 § 2 of the Constitution stipulates that the interferences with the right to property must be prescribed by law as it provides that the right to property may be limited by law and in the interest of the public. Similarly, governing the general principles surrounding the restriction of fundamental rights and freedoms, Article 13 of the Constitution adopts the basic principle that “rights and freedoms may only be restricted by law” (see Ali Ekber Akyol and Others, no. 2015/17451, 16 February 2017, § 51).
51. The first criterion to be sought in interferences with the right to property is whether it relied on a legal basis. Where it is established that this criterion was not met, the Court will arrive at the conclusion that there has been a breach of the right to property, without holding any examination under the remaining criteria. For an interference to be prescribed by law, there must be sufficiently accessible and foreseeable rules within the domestic law regarding the interference (see Türkiye İş Bankası A.Ş. [Plenary], no. 2014/6192, 12 November 2014, § 44). Equally important as the existence of the law is the necessity that the text and application of the law has legal certainty to a degree that individuals may foresee the consequences of their actions. In other words, the quality of the law plays an important role in the determination of whether the requirement of legality has been satisfied (see Necmiye Çiftçi and Others, no. 2013/1301, 30 December 2014, § 55).
52. In the present case, the inferior courts dismissed the applicant’s compensation claims in relation to the damaged building on the ground that it lacked a building licence and an occupancy permit, which contravened Articles 21 and 30 of Law no. 3194. According to the inferior courts, it is a legal obligation to demolish unlicensed structures pursuant to Article 32 of Law no. 3194 and, therefore, the damage incurred by the applicant could not be compensated by the administration. However, the Court observes that the said Article set out an administrative procedure to be followed in respect of structures incompatible with the licence. Accordingly, the situation of incompatibility with the licence must be established by the administration and notified to the person concerned. Following this discovery and notification, the owner of the structure would be allowed to ensure that his structure complied with the licence or obtain a licence within one month at the latest. In the case giving rise to the present application, nonetheless, the Municipality did not either make such a discovery of zoning incompatibility or serve a notification on the applicant in that regard. What is more, the land registry records demonstrate that the presence of a house was indeed registered and this structure is also indicated on the zoning status map. Therefore, there is no possibility that the Municipality was unaware of the existence of this building. Nevertheless, for approximately 22 years, the Municipality did not show any initiative to ensure this structure’s compliance with the licence or, in the event of failure to do so, arrange its demolition. In the circumstances, account should be taken of both the aforementioned passive attitude of the public authorities and the administrative procedure prescribed by law which granted the owner to get his building duly licensed when assessing the status of the unlicensed building.
53. On the other hand, it has been emphasised in previous judgments that the Court’s duty as regards the complaints concerning the application of rules of law is limited by virtue of the subsidiary nature of the individual application mechanism; in this context, the Court cannot intervene in the discretion of the inferior courts with regard to implementation and interpretation of rules of law that constitute an interference with the rights and freedoms within the scope of individual application unless there is a manifest arbitrariness or a manifest error of discretion (see Ahmet Sağlam, no. 2013/3351, 18 September 2013, § 42). Having further regard to the nature of the interference, the Court will reach a conclusion as to whether the public authorities’ approach regarding the practice of law met the requirements stipulated in Article 35 of the Constitution after examining whether the interference was successful in achieving the legitimate aim pursued and whether it was proportionate.
54. According to Articles 13 and 35 of the Constitution, the right to property may only be restricted in the interest of the public. The notion of public interest serves both a restrictive instrument, which allows for imposition of restrictions on the right to property where the public interest requires it, and an effective protection mechanism, which sets out limits to restrictions by preventing the imposition of any restrictions on the right to property outside public interest aims (see Nusrat Külah, no. 2013/6151, 21 April 2016, § 53).
55. The notion of public order is considerably broad by nature. Taking into account the needs of the public, the legislative and executive organs have broad discretionary powers in the determination of what is in the public interest. If there is a dispute on the public interest, it is clear that the specialised first-instance courts and the courts of appeal are in a better position to resolve such disputes. The Court cannot intervene in the discretion of the authorised public organs with regard to the determination of public interest, unless their decisions are understood to be manifestly ill-founded or arbitrary, in the individual application examination. The onus of proving that the interference does not pursue public interest rests with the party raising such an allegation (see Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, §§ 34-36).
56. Article 56 of the Constitution guarantees everyone the right to live in a healthy and balanced environment and stipulates that it is the duty of the State and citizens to improve the natural environment, to protect the environmental health and to prevent environmental pollution. In order to create healthy, safe, quality and economical living environments, it is important to make sure that the structures to be erected are built in accordance with the zoning legislation and, in this scope, ensure that the development is compatible with the scientific, health-related and environmental conditions by way of subjecting all structures to licensing, with the exception of such constructions that are clearly permitted by law without a licence requirement. In this respect, it must be acknowledged that there is public interest in ensuring structures’ compatibility with scientific, health-related and environmental conditions, as well as in setting forth regulations in that connection (see Osman Yücel, no. 2014/4874, 15 June 2016, §§ 82-84). As regards the instant case, as well, the Court concludes that the inferior courts’ decision to reject the compensation claim on account of the structure’s lack of a building licence and an occupancy permit pursued a legitimate aim based on public interest.
(a) General Principles
57. Lastly, the Court should examine whether there was a reasonable balance of proportionality between the objective sought to be achieved by the interference with the applicant’s right to property and the means used to this end.
58. Proportionality, which is one of the criteria to take 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).
59. The principle of proportionality (ölçülülük) comprises of three subprinciples, which are “suitability” (elverişlilik), “necessity” (gereklilik) and “proportionality” (orantılılık). “Suitability” means that the prescribed interference is capable of achieving the objective aspired for; “necessity” shall mean that the interference is absolutely necessary for that objective, that is when achieving such objective with a lighter intervention is not possible; and “proportionality” shall refer to the need for striking a reasonable balance between the interference with the individual’s right and the objective sought (see the Court’s judgments no. E.2011/111, K.2012/56, 11 April 2012; no. E.2014/176, K.2015/53, 27 May 2015; no. E.2016/13, K.2016/127, 22 June 2016; and Mehmet Akdoğan and Others, § 38).
60. Pursuant to the principle of proportionality, a fair balance must be struck between the public interest sought in restricting the right to property and the individual’s rights. This fair balance will have been upset where it is found out that the applicant has personally borne an excessive burden (see Arif Güven, no. 2014/13966, 15 February 2017, § 58). In the assessment of proportionality of the interference, the Court will take account of the burden imposed on the applicant from two perspectives: on the one hand, it will examine the importance of the legitimate aim sought to be achieved; and, on the other, it will have regard to the nature of the interference along with the behaviour of the applicant and the public authorities (see Arif Güven, cited above, § 60).
61. The building constructed on the immovable property belonging to the applicant was used by the applicant as residence for many years without obtaining a building licence or an occupancy permit. A landslide incident took place on 1 July 2005 during the foundation excavation works for a Regional Boarding Primary School conducted by the Governor’s Office. The applicant asserted that his house had sustained damage because of this construction activity. The reports and official records drawn up by public authorities indicate -in corroboration of the applicant’s assertion- that the building was damaged as a result of the landslide caused by the said construction activity. The applicant requested discovery of evidence in relation to the incident, upon which a panel of experts also reported that the applicant’s building had become uninhabitable and that the damage had been caused by the construction activity conducted by the Governor’s Office. Finally, the inferior courts acknowledged that the applicant’s house had sustained damage and what had led to that damage was the landslide originating from the construction activity under the supervision of the administration. In fact, the inferior courts accepted the applicant’s claim for pecuniary compensation for the damage inflicted on the fruit trees found on the same immovable property. Therefore, it is well-established according to these facts that, in essence, the applicant’s immovable property was damaged due to the landslide resulting from the administration’s construction activity.
62. The applicant was not able to reach any successful outcome in the administrative and judicial remedies he pursued with a view to claiming redress for his loss. In the action for compensation brought by the applicant, the first-instance court arrived at the conclusion that the applicant could not claim compensation due to an unlawfully-built structure which had to be had demolished. The applicant’s requests for an appeal and rectification against this judgment were dismissed by the Supreme Administrative Court, thereby rendering it final. On the other hand, the Court notes that no examination was held on nor any account was taken of the attitude or behaviour of the public authorities.
63. Public authorities enjoy wide powers of discretion in the context of urban planning and zoning practices. That being said, when using those discretionary powers, public authorities are expected to act in a timely, reasonable and consistent manner for the protection of individuals’ property rights. In the instant case, however, the public authorities displayed a passive attitude in terms of establishing the building’s lack of a building licence and launching the necessary administrative procedures. To the contrary, they allowed the building to use municipal services in contravention to the stipulation in Article 31 of the Law no. 3194; the applicant and his family resided in this building for at least 22 years. Moreover, it is noted that the immovable property’s quality recorded in the land registry was registered by taking cognisance of this structure. As mentioned above, an economic interest within the scope of the right to property arose in respect of this building where the applicant and his family formed a social environment; hence, they could not have been expected to foresee a sudden change in the long-standing passive attitude displayed by the public authorities with regard to demolition of the building in question.
64. Furthermore, the Court finds it necessary to draw particular attention to the fact that the Municipality failed to apply the administrative procedure envisaged by Article 32 of Law no. 3194. In this scope, even though the inferior courts held that the building had to be demolished in any case on account of its illegality, the Court observes that there may not have been such an obligation to demolish it according to the said legal provision. Indeed, this provision offered the owner of the structure the opportunity to obtain a building licence within a time-limit of one month from the notification date. Demolition would be possible only if the structure was not rendered compatible with the building licence or a building licence was not obtained at all within the said time-limit.
65. Besides, whether or not the building was granted an occupancy permit or a building licence does not change the fact that a damage occurred in the applicant’s house due to the administration’s fault. As acknowledged by the administration and the inferior courts, the applicant’s house was damaged as a result of the landslide that took place during a construction activity conducted under the supervision and control of the public authorities. The expert report on the matter indicates that the landslide took place as a result of the lack of requisite geological screening and surveying and the failure to take appropriate measures accordingly during the construction activity. Nonetheless, in view of the failure to apply in advance the procedure which would allow for a possibility of rendering the building compliant to the licence, the fact that his compensation claim was rejected since the building would be demolished in any event has resulted in an outcome in which the applicant has to bear all the damage while the administration is also at fault.
66. In the case giving rise to the present application, the applicant’s request for compensation of the damage brought to his house by the landslide resulting from the administration’s construction activity was dismissed on the ground that the building did not have a licence. Therefore, the applicant’s house was damaged because of the administration’s fault but the applicant was not paid any compensation despite that. On that account, the inferior courts’ strict approach involving a disregard for the public authorities’ attitude and behaviour in the course of events imposed a personally excessive and extraordinary burden on the applicant. In the light of the above, the Court concludes that the fair balance which needed to be struck between public interest and the applicant’s right to property was upset to the detriment of the applicant and that the interference was not proportionate.
67. Consequently, the Court has found a violation of the right to property protected under Article 35 of the Constitution.
68. Article 50 §§ 1 and 2 of the Code no. 6216 on the 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.”
69. The applicant claimed pecuniary and non-pecuniary compensation.
70. The Court has found a violation of the applicant’s right to property.
71. Since there is legal interest in holding a retrial to redress the consequences of the violation of the right to property, a copy of the judgment must be sent to the 1st Chamber of the Diyarbakır Administrative Court for retrial.
72. The applicant’s claims for compensation, on the other hand, must be rejected as the Court considers that ordering a retrial on the basis of the finding of a violation of the right to property offers him sufficient redress.
73. The total court expense of TRY 2,006.10, including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.
For these reasons, the Constitutional Court UNANIMOUSLY held on 5 December 2017 that
A. The application be DECLARED ADMISSIBLE;
B. The right to property safeguarded by Article 35 of the Constitution was VIOLATED;
C. A copy of the judgment be SENT to the 1st Chamber of the Diyarbakır Administrative Court (no. E.2005/1047, K.2009/1283) to conduct retrial for redress of the consequences of the violation of the right to property;
D. The applicant’s claims for compensation be REJECTED;
E. The total court expense of TRY 2,006.10, including the court fee of TRY 206.10 and counsel fee of TRY 1,800, be REIMBURSED TO THE APPLICANT;
F. The payment be made within four months as from the date when the applicant applies 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.
