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On 8 May 2019, 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 İoanis Maditinos (no.
2015/9880).
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THE FACTS
[8-38] The applicant, who was a Turkish national, was deprived
of Turkish citizenship by virtue of a Cabinet Decree for voluntarily acquiring
citizenship of a foreign state without any permission. The applicant, a Greek
who is still residing in Athens, became the only heir of an immovable located
in İstanbul. However, the incumbent civil court assigned the whole inheritance
to the State Treasury as the applicant was no longer a Turkish nation.
He then filed an application with the incumbent civil court to
obtain a certificate of inheritance, and the civil court accepted his
application. Thereafter, the Treasury filed an action against the applicant for
the revocation of his certificate of inheritance, which was subsequently
revoked by virtue of a court decision. On the other hand, the action brought by
the applicant before the civil court for the revocation of the Treasury’s
certificate of inheritance was dismissed. He appealed the dismissal decision
before the Court of Cassation; however, the decision was ultimately upheld.
V. EXAMINATION AND GROUNDS
39. The Constitutional Court (“the Court”),
at its session of 8 May 2019, examined the application and decided as follows:
A.
The Applicant’s
Allegations and the Ministry’s Observations
40. The applicant asserted that the disputed
immovable property was registered to Frenike and Tanaş Maditinos in the land
registry and that since the registered owner Tanaş Maditinos had died in 1996,
he had a right to the inheritance as the heir of the said person. The applicant
complained that, despite this fact, his claim for a certificate of inheritance
was rejected and the Treasury was granted a certificate of inheritance over the
immovable property at issue. Referring to relevant judgments of the European
Court of Human Rights (“the ECtHR”) on the subject, the applicant alleged that
there had been a violation of his right to property.
41. In its observations, the Ministry cited
the rulings of the European Court of Human Rights in similar applications and
relevant pieces from the case-law of the Court of Cassation, consequently
affirming the Court’s discretion on the matter.
B. The Court’s Assessment
42. Article 35, titled “Right to property”,
of the Constitution, which will be taken as 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
43. According to the Constitution and
Provisional Article 1 § 8 of the Law on the Establishment and Rules of
Procedures of the Constitutional Court (Law no. 6216, dated 30 March 2011), the
Court’s temporal jurisdiction runs from 23 September 2012, which means that it
is authorised to examine only the individual applications lodged against the
acts and decisions that became final after the said date. In view of this clear
provision, it is not possible to extend the coverage of the temporal
jurisdiction in a way that will also cover the actions and decisions that had
become final before the aforementioned date. These rules on the temporal
jurisdiction of the Court must be taken into consideration ex officio at
every stage of the individual application procedure as they pertain to the
maintenance of public order (see Ahmet Melih Acar, no. 2012/329, 12
February 2013, § 15; and G.S., no. 2012/832, 12 February 2013, § 14).
44. The Court has further indicated that, as
a rule, an interference with the right to property -in the form of deprivation
of property- is a momentary act and does not constitute a continuing
interference (see Agavni Mari Hazaryan and Others, no. 2014/4715, 15
June 2016, § 114). On the other hand, the Court will make its assessment by
taking note of whether, on the condition that it became final within the
jurisdiction ratione temporis, the public authorities examined and
issued a decision on the substantial aspect (merits) of the interference or
whether there was any compensation or a similar remedy accorded in respect of
the interference (see Varvara Arnavut, no. 2014/7538, 13 September 2017,
§ 48; and Agavni Mari Hazaryan and Others, §§ 111-120).
45. In the present case, the applicant’s
claim for a certificate of inheritance was granted on 9 June 1997 by a court
but, following an action filed on 27 October 1997 by the Treasury, the relevant
court revoked the certificate of inheritance on 28 December 2001. This judgment
was upheld by the Court of Cassation and the subsequent request for
rectification of the decision was dismissed, thereby becoming final on 14
November 2002. However, the applicant filed a new action on 12 April 2013 for
revocation of the Treasury’s certificate of inheritance. Having examined it on
the merits, the trial court dismissed the case by relying on grounds of the
inter-state reciprocity principle. Though the applicant appealed the dismissal,
the Court of Cassation upheld it on 9 March 2016. Thus, in view of the nature
of the relevant sets of proceedings and the decisions rendered as a result
thereof, as well as the reasons given in the judgments of the inferior courts,
the Court observes that the dispute process giving rise to the present
application was finally concluded within the period of time covered by the
Court’s temporal jurisdiction.
46. The
alleged violation of the 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
47. A person complaining that his/her right
to property was violated must prove that such a right existed in the first
place (see Mustafa Ateşoğlu and Others, no. 2013/1178, 5 November 2015,
§§ 49-54). For this reason, it is primarily necessary to evaluate the legal
status of the applicant on the point of whether or not he has an interest in
relation to property which requires protection under Article 35 of the
Constitution (see Cemile Ünlü, no. 2013/382, 16 April 2013, § 26; and İhsan
Vurucuoğlu, no. 2013/539, 16 May 2013, § 31). The right to property safeguarded
by Article 35 of the Constitution encompasses the rights over any kind of
assets which represents an economic value and is assessable with money (see the
judgment no. E.2015/39, K.2015/62, 1 July 2015, § 20).
48. It is clear in the present case that the
immovable property at issue represented an asset value which fell under the
scope of the right to property. Frenike and Tanaş Maditinos each held a share
of 1/12 over this immovable property according to the land registry. Frenike
Maditinos died on 31 July 1978 and Tanaş Maditinos died on 21 October 1996. The
Beyoğlu 1st Magistrates’ Court in Civil Matters decided on 17 March
1998 that Frenike Maditinos’s inheritance was passed on to the Treasury. The
same court dismissed the applicant’s objection on 14 June 2000. The Beyoğlu 4th
Magistrates’ Court in Civil Matters conditionally granted the applicant’s
inheritance claim over the immovable properties; however, this certificate of
inheritance was revoked on 28 December 2001 following the Treasury’s request.
Prior to lodging an individual application, the applicant filed an action with
the İstanbul 8th Civil Court of General Jurisdiction, requesting the
revocation of the certificate of inheritance granted to the Treasury by this
judgment dated 28 December 2001. After the dismissal of his case became final,
the applicant complained of an alleged violation of his right to property.
49. Therefore, this individual application
concerns the issuance of a certificate of inheritance to the Treasury through
revocation of the certificate of inheritance which was previously granted to
the applicant in respect of the 1/12 share registered to Tanaş Maditinos due to
the latter’s death. Since the application pertains to the succession of the
testator’s inheritance, there is no dispute as to the fact that it has to be
examined from the standpoint of the right to property.
50. It cannot be said in the present case
that the inheritance would pass directly onto the applicant upon the testator’s
death pursuant to Article 705 of the Turkish Civil Code (Law no. 4721, dated 22
November 2001). In fact, according to Article 35 of Law no. 2644, which was in
force at the time of the testator’s death, the reciprocity requirement also
needed to be satisfied. However, it should be borne in mind that the applicant
had been granted a certificate of inheritance regarding the aforementioned
registered owner’s inheritance until it was revoked in respect of the immovable
properties.
51. On the other hand, a deliberation should
be held on the question of whether the applicant had a legitimate expectation
to acquire ownership of the immovable property in question. Being the son of
the brother of one of the shareholders of the immovable property (Tanaş
Maditinos) who died in 1996, the applicant clearly has an ancestral link that
enables him to be recognised as an heir according to the provisions of
inheritance law. Nonetheless, the inferior courts revoked the applicant’s
certificate of inheritance due to the absence of reciprocity between the two
countries and issued a certificate of inheritance to the Treasury. In other
words, it is understood that the applicant could be recognised as the sole heir
of the testator if there was a reciprocal relationship between the countries.
Therefore, setting aside the deliberation on the existence of reciprocity to be
held under the head of the justifiability of the interference, in the presence
of a clear relationship of ancestral link between the testator and the
applicant, which calls for his recognition as an heir, the Court must
acknowledge that the applicant had a legitimate expectation to acquire
ownership rights over the disputed immovable property. Besides, having regard
to the fact that the applicant had been granted a certificate of inheritance
which had been valid until its revocation, the Court has concluded that the
applicant had an interest worthy of protection under the right to property
within the meaning of Article 35 of the Constitution.
b. Existence
of an Interference and its Type
52. 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/she owns, benefit from its fruits,
and dispose of that thing provided that he/she 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/her property, benefit from its fruits, and
dispose of the property constitutes an interference with the right to property
(see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February
2017, § 53).
53. 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, §§ 55-58).
54. In the case giving rise to the present
application, the fact that the Treasury was declared as the heir of testator
Tanaş Maditinos through revocation of the certificate of inheritance granted to
the applicant in respect of the disputed inheritance has resulted in the
registration of the inherited immovable property in the name of the Treasury.
Therefore, it is beyond doubt that there has been an interference with the
applicant’s right to property. In view of its nature and purpose, the Court has
found it appropriate to examine the interference within the framework of the
general rule concerning peaceful enjoyment of possessions.
c. Whether
the Interference Amounted to a Violation
55. 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.”
56. 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. 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 (see Recep Tarhan and
Afife Tarhan, § 62).
i. General Principles
57. Article 35 § 2 of the Constitution
stipulates that any interference 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. Accordingly, the primary criterion to be taken
into account in interferences with the right to property is whether the interference
is based on the law. 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
(see Ford Motor Company, no. 2014/13518, 26 October 2017, § 49).
58. The regulation by law of rights and
freedoms, as well as the interferences and restrictions to be imposed thereon,
is one of the most important elements of a democratic state governed by rule of
law that prevent arbitrary interference with these rights and freedoms and
ensure legal security (Tahsin Erdoğan, no. 2012/1246, 6 February 2014, §
60). 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). For an interference to be prescribed by
law, there must be sufficiently accessible and foreseeable rules regarding the
interference (see Türkiye İş Bankası A.Ş. [Plenary], no. 2014/6192, 12
November 2014, § 44).
59. The principles of legal security and
certainty are prerequisites for a state governed by rule of law. Aimed at
ensuring the legal safety of persons, the principle of legal security requires
that legal norms are foreseeable, that individuals can trust the state in all
of their acts and actions, and that the state avoids using any methods which
would undermine this trust in their legislative acts (see the judgments nos.
E.2013/39, K.2013/65, 22 May 2013; E.2014/183, K.2015/122, 30 December 2015, § 5).
The certainty principle means that legislative acts must be sufficiently clear,
non-ambiguous, understandable and applicable not to allow any hesitation or
doubt on the part of both the administration and individuals and they must
include safeguards against arbitrary practices of public authorities (see the
Court’s judgments nos. E.2013/39, K.2013/65, 22 May 2013; and E.2010/80,
K.2011/178, 29 December 2011).
ii. Application of Principles to the Present Case
60. Although Greek citizens’ transfer rights
over their immovable properties within Turkey were initially suspended in
accordance with the principle of reciprocity via the Decree dated 2 November
1964, issued on the basis of the Law no. 1062, this Decree was abolished on 3
February 1988 by the Council of Ministers. As indicated in the rulings of the
Court of Cassation, this Decree was issued as a reciprocal act in response to
all the measures and treatments adopted by the Government of Greece. It pursued
the aim of simply suspending temporarily the transfer rights of persons of
Greek nationality over their immovable properties located within Turkey rather
than confiscating them. Accordingly, it is clear that the said Decree, which
imposed a temporary restriction on Greek citizens’ transfer rights in respect
of immovable properties within Turkey, was not in force when the testator in
the present case died on 21 October 1996. Besides, the Plenary Session of the
Court of Cassation in Civil Matters acknowledged that it was not the aim of the
said Decree to substantially nullify all legal transactions other than transfer
rights and that even the court judgment delivered on the basis of this Decree
was of an interim nature; thus, it was not a definitive ruling which either
established the existence/absence of a right or granted/removed a right.
61. Nonetheless, the inferior courts in the
instant case decided that the applicant could not be the heir of the testator
in respect of the latter’s immovable property on account of the absence of
reciprocity with Greece. In reaching this conclusion, the inferior courts
relied on the letters of the Directorate General [for International Law and
Foreign Relations of the Ministry of Justice] concerning the issue of
reciprocity between the two countries. However, upon examination of these letters,
the Court clearly observes that, at the time of the testator’s death or during
the proceedings, there was no finding to indicate that Turkish citizens were
not able to acquire property by inheritance in Greece, even in the regions
where various restrictions applied. Although these letters mention the
introduction of a requirement for obtaining authorisation to perform legal
transactions such as purchase and sale of property in certain regions of
Greece, which make up 55% of its territory, there is no concrete information
indicating that such an authorisation procedure also applies to acquisition of
property by inheritance. In fact, in the cases of Nacaryan and Deryan v.
Turkey and Apostolidi and Others v. Turkey, the European Court of
Human Rights pointed at the lack of such information in the letters of the
Ministry [of Justice] and the Ministry of Foreign Affairs. It held, on the
contrary, that there were documents indicating that Turkish citizens in Greece
had been able to acquire by inheritance the immovable properties located within
the regions which were subject to the restriction imposed via Law of 1990.
62. It must also be emphasised that the
principle of reciprocity has become no longer a requirement for acquisition of
property by inheritance thanks to the legislative amendments of 29 December
2005 and 3 May 2012 to Article 35 of Law no. 2644. Accordingly, in cases where
it is discovered that the immovable properties and limited real rights have not
been acquired in compliance with the conditions set out in the first paragraph
of this article, the owner shall be given up to one year’s time to liquidate
the property. If the owner fails to do so by the end of that time, the Ministry
of Treasury and Finance shall liquidate the property and pay the sales price to
the rightholder.
63. As a result, the Court observes that the
inferior courts failed to show the legal basis, with a reasonable and
sufficient justification, for the revocation of the applicant’s certificate of
inheritance in the absence of any explicit finding, as a requirement of the
principle of reciprocity, that Turkish citizens were not allowed to acquire
properties by inheritance in Greece within the framework of the provisions of
law which were in force at the material time. Therefore, in view of the fact
that Article 35 of Law no. 2644 was not applied in a sufficiently foreseeable
manner in the present case, the Court concludes that the interference with the
applicant’s right to property in the form of non-recognition of his capacity as
an heir was devoid of any foreseeable legal basis. In the light of this
conclusion, the Court finds no need to further examine whether the interference
pursued a legitimate aim or if was proportionate.
64. For these reasons, it must be held that
there has been a violation of the right to property protected under Article 35
of the Constitution.
3. Application of Article 50 of Code no. 6216
65. 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.”
66. If the Court finds a violation of a
fundamental right or freedom within the scope of an individual application, the
main requirement which needs to be satisfied to consider that the violation and
its consequences have been removed is to ensure restitution to the extent
possible, that is to restore the situation to the state it was in prior to the
violation. For this to happen, the continuing violation needs to be ceased, the
decision or act giving rise to the violation as well as the consequences
thereof need to be removed, where applicable the pecuniary and non-pecuniary
damages caused by the violation need to be indemnified, and any other measures
deemed appropriate in that scope need to be taken (see Mehmet Doğan
[Plenary], no. 2014/8875, 7 June 2018, § 55).
67. Before ruling on what needs to be done
to remove the violation and its consequences, the source of the violation must
first be ascertained. In this respect, a violation may stem from administrative
acts and actions, judicial acts, or legislative acts. Determining the source of
the violation plays a significant role in the determination of the appropriate
way of redress (see Mehmet Doğan, § 57).
68. In cases where the violation originates
from a court ruling, the Court decides, as a rule, to send a copy of the
judgment to the relevant court for a retrial to be held to redress the
violation and its consequences pursuant to Article 50 § 2 of Code no. 6216 and
Article 79 § 1 (a) of the Internal Regulations of the Constitutional Court (see
Mehmet Doğan, § 58).
69. Accordingly, the discretion to decide
whether it is necessary to conduct a retrial in case of a finding of a
violation by the Court is vested not in the inferior courts but in the Court
itself. In turn, the inferior courts are under an obligation to take the steps
necessary in order to redress the consequences of the violation in accordance
with the direction set by the Court in its judgment (see Mehmet Doğan, §
59).
70. The applicant requested the violation to
be ceased and claimed pecuniary compensation.
71. The Court has found a violation of the
right to property due to the judicial authorities’ denial of recognising the
applicant’s right to inheritance in respect of the disputed immovable property.
It has thus been understood that the violation in the present case stemmed from
a court ruling.
72. In such cases, there is legal interest
in holding a retrial in order to redress the consequences of the violation of
the right to property. A retrial to be conducted in this scope aims to redress
the violation and its consequences according to Article 50 § 2 of Code no.
6216. In this regard, what is to be done by the inferior courts consists of annulling
in the first place the court ruling giving rise to the violation and finally
rendering a new ruling in accordance with the violation judgment. For this
reason, a copy of the judgment must be remitted to the İstanbul 8th
Magistrates’ Court in Civil Matters for retrial.
73. The only document submitted by the
applicant in support of his claim for pecuniary compensation for the damages
incurred over the period of time he was deprived of the property is a report
drafted by a real estate firm, which shows approximately the current amount of
rent on the immovable property, without relying on any reasoning or scientific
data. Thus, the applicant failed to produce any documents or reports
demonstrating the concrete and real damage, which would be sufficient for an
award of pecuniary compensation under this head. As regards the claim for
payment of the property’s sales price as pecuniary compensation, this claim
must also be rejected as the ruling in favour of a retrial offers sufficient
redress in this regard.
74. The total court of expense of TRY
2,701.90 including the court fee of TRY 226.90 and counsel fee of TRY 2,475,
which is calculated over the documents in the case file, must be reimbursed to
the applicant.
VI. JUDGMENT
For these reasons, the Constitutional Court
unanimously held on 8 May 2019 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. A
copy of the judgment be REMITTED to the İstanbul 8th Civil Court of
General Jurisdiction (no. E.2013/297, K.2014/488) for a retrial to redress 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 2,701.90 including the court fee of TRY 226.90 and
counsel fee of TRY 2,475 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 Treasury and Finance following the notification of the
judgment; in case of any default in payment, statutory 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.
