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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).
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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.
V.
EXAMINATION AND
GROUNDS
34. The Constitutional Court (“the Court”), at its session of 5 December
2017, examined the application and decided as follows:
A.
The Applicant’s
Allegations
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.
B.
The Court’s Assessment
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.”
1. Admissibility
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.
2. Merits
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.
b. Existence of an
Interference
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”.
c. Whether the
Interference Caused a Violation
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).
(1)
Whether the
Interference was Prescribed by Law
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.
(2)
Whether the Interference Pursued a
Legitimate Aim
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.
(3)
Proportionality
(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).
(b) Application of Principles to the Present
Case
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.
3. Application
of Article 50 of Code no. 6216
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.
VI.
JUDGMENT
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.
