THE FACTS

[8-29] The applicant filed a request with the municipality for the expropriation of his immovable property that had been allocated as a road in the master development plan.

The municipality proposed exchange of the immovable; however, the applicant refused it as the proposed immovable properties were not equivalent to his immovable. Thereafter, he filed a case against the municipality before the administrative court and claimed the current market value of his immovable.

The administrative court noted that pursuant to the Provisional Article 11 of the Expropriation Law no. 2942, effective as of 7 September 2016, the five-year period for the expropriation of the immovable properties allocated by implementary development plans for public services and governmental agencies would start running as from the date of entry into force of this provision and, therefore, concluded that it could not decide on the merits of the dispute at that stage.

The applicant then appealed the decision; but the regional administrative court found the first instance decision compatible with the procedure and law and therefore dismissed the applicant’s appellate request with final effect.

V.      EXAMINATION AND GROUNDS

30.    The Constitutional Court, at its session of 20 September 2018, examined the application and decided as follows:

A.      The Applicant’s Allegations and the Ministry’s Observations

31.    The applicant stated that the fact that his immovable property was allocated as road in the zoning plan constituted an interference with his right to property, and that he had not been able to use the immovable property since 2004 because of the said interference. The applicant stated that the non-expropriation of his immovable property led to a violation of his right to property. He contended that the right to a fair trial, the principle of equality, and freedom to seek rights had been violated due to the retroactive implementation of legal amendments made while the proceedings had been pending.

32.    In the Ministry's observations, it was stated that the applicant's immovable property was allocated as road in the zoning plan and that in the action filed by the applicant on the restriction of the right of disposition arising from the allocation of the immovable to the public service, the case was concluded against the applicant in accordance with the law article coming into force later. In this context, the Ministry emphasized that the interference satisfied the criteria of legality and public interest. The Ministry added that the Constitutional Court enjoys discretion in the assessment of proportionality to be carried out in the context of the damage caused to the property and whether a disproportionate burden was imposed upon the applicant.

33.    The applicant declared in his submission against the observations of the Ministry that he had not been able to properly use the right to property over his immovable property for years due to the allocation of the property as a public service area. The applicant asserted that he would not like to be victimized again due to the resetting of the five-year period on account of the newly introduced legal regulation that came into force after the action was filed, thereby preventing him from exercising his constitutional rights. The applicant submitted that his compensation claims were still valid.

B.       The Court’s Assessment

34.    Article 35 of the Constitution, titled "Right to Property", 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.

35.    The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicant argues that apart from the right to property, his right to a fair trial, principle of equality and right to seek freedom have been violated. However, the applicant failed to justify the existence of the unequal treatment that could lead to a violation of the principle of equality in the present case. Moreover, as it has been understood that the original complaint of the applicant concerned his failure to enjoy his property, and his failure to use and dispose of the property, all complaints of the applicant were examined within the scope of failure to exercise the right to property.

1.        Admissibility

36.    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

37.    Article 1 § 1 of the Constitution, which reads "Everyone has the right to own and inherit property", protects the right to property. The right to property, which is guaranteed by the aforementioned article of the Constitution, encompasses the right to any property that carries economic value and that have a monetary value (see the Court’s judgment no. E. 2015/39, K. 2015/62, 1 July 2015, § 20). The immovable property which was the subject matter of the zoning implementation is registered in the applicant's name. In this context, it is clear that the immovable property which is registered in the land registry constitutes property within the meaning of Article 35 of the Constitution.

b.        Existence of an interference

38.    The right to property, guaranteed as a fundamental right in Article 35 of the Constitution, authorizes the person to use his possessions as he/she wishes and to dispose of and benefit from the products that grow on it, provided that he/she does not prejudice rights of others and complies with the restrictions provided for in the laws (see Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 32). Therefore, the restriction of any of the rights of the owner to use his property, to benefit from the products on his/her property and to dispose of his/her property constitutes an interference with the right to property (see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February 2017, § 53).

39.    As the immovable property has not been expropriated and not been actually confiscated yet, the allocation of the immovable property for public use in the zoning plan does not result in the deprivation of the right to property, but it significantly restricts the authorities of the owner arising from the right to property. In this regard, as the immovable is reserved as a public service area, it is not possible to construct anything on it. This also has negative effects on the procedures concerning the establishment of rights of sale, donation, mortgage, and other easement rights and on the market value of the immovable. Therefore, there is no doubt about the fact that allocating the immovable properties as “public service areas” in the zoning plan will constitute an interference with the right to property.

40.    Article 35 § 1 of the Constitution describes the right to peaceful enjoyment of the property, stipulating that everyone has the right to property and the second paragraph draws a framework of interference with the right to peaceful enjoyment of property. In the second paragraph of the said article, the conditions under which the right to property may be restricted are listed and a general framework of the conditions for deprivation of property is provided. In the last paragraph of the said article, it is set out that as a rule, the use of the right to property cannot be contrary to the public interest. Thus, the state is allowed to control and regulate the use of property. Special provisions allowing the control of property by the state may be found also in other articles of the Constitution. It should also be noted that deprivation of property and regulation of property are special forms of interference with the right to property (see Recep Tarhan and Afife Tarhan, §§ 55-58).

41.    The interferences with the right to property by way of zoning implementations are considered, as a rule, within the scope of control (or regulation) of the use of property for the public interest, as stated in individual application decisions (see Süleyman Günaydın, no. 2014/4870, 16/6/2016, § 65). As mentioned above, it is clear that the interference in the present case did not result in deprivation of property. However, taking into account the period of time passed following the interference and the fact that the interference constituted a stage of the expropriation process, the interference cannot be considered to serve the purpose of control or regulation. Hence, the interference which is the subject matter of the application must be examined within the scope of the general rule of peaceful enjoyment of property.

c.         Whether the Interference Constituted a Violation

42.    Article 13 of the Constitution reads 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.”

43.     The right to property is not regulated as an unlimited right in Article 35 of the Constitution and it was provided for that this right may be restricted by law for the public interest. In interferences with the right to property, Article 13 of the Constitution which regulates the general principles concerning the limitations on the fundamental rights and freedoms, should be taken into consideration. In accordance with the article in question, fundamental rights and freedoms may only be limited by law, on account of the reasons stated in the relevant articles of the Constitution, without violating the requirements of the democratic public order and the principle of proportionality. In order for an interference with the right to property to be in compliance with the Convention, the interference must be based on the law, must pursue public interest, and must be carried out in accordance with the principle of proportionality (see Recep Tarhan and Afife Tarhan, § 62).

i. Lawfulness

44.    Article 35 § 2 of the Constitution, which stipulates that the right to property may only be limited by law for public interest, requires the interferences with the right to property to be prescribed by law. Furthermore, Article 13 of the Constitution that regulates general principles with regard to the restriction of the fundamental rights and freedom adopted, as a fundamental principle, the fact that "the rights and freedoms may only be restricted by law" (see Ali Ekber Akyol and Others, no. 2015/17451,16 February 2017, § 51).

45.    The first criterion required to be examined in case of interferences with the right to property is whether the interference had a legal basis in law. In the event that it is found established that this criterion has not been met, it is concluded that the right to property is violated without examining other criteria. The criterion that the interference must be prescribed by law requires that there are enough accessible and foreseeable rules regarding the relevant interference in domestic law (see Turkey İş Bankası A.Ş. [GA], 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 is also important in determining whether or not the legal requirement is met (see Necmiye Çiftçi and Others, no. 2013/1301, 30 December 2014, § 55).

46.    In the present case, the applicant's immovable property was allocated as a road in the zoning implementation performed in accordance with Law no. 3194. This constitutes the basis of the interference with the right to immovable property. Having said that, the action for compensation filed by the applicant was rejected by the inferior courts which stipulated that it was not possible to render a decision on the merits of the dispute in accordance with the Provisional Article 11 added to Law no. 2942. In this context, it was considered that the interference with the applicant's right to property had satisfied the legality criterion.

47.    Besides, as explained in the previous judgments, the duty of the Constitutional Court in respect of the complaints regarding the implementation of the legal rules is limited due to the subsidiary nature of the remedy of individual application and the Constitutional Court cannot interfere with the discretionary power of the inferior courts in terms of implementing and interpreting the legal rules, except in cases of except for obvious discretionary errors or explicit arbitrariness, which constitute an interference with the rights and freedoms within the scope of individual application (see Ahmet Sağlam, no. 2013/3351, 18 September 2013, § 42). In determining whether the public authorities' approach to enforcing the legal rules meets the requirements of Article 35 of the Constitution, the Constitutional Court, taking account of the nature of the interference in the present case, will examine whether the interference was proportional and successful in reaching the pursued aim and subsequently render a decision.

ii. Legitimate Aim

48.    Pursuant to Articles 13 and 35 of the Constitution, the right to property may only be restricted in favour of public interest. In addition to providing the possibility of restricting the right to property as deemed necessary by the public interest and being a reason for the restriction, the notion of public interest envisages that the right to property cannot be restricted except for the interest of public and effectively protects the right to property by determining limits of the restriction in this respect (see Nusrat Külah, no. 2013/6151, 21 April 2016, § 53).

49.    Public interest is a broad notion by nature. Taking into account the needs of the public, the legislative and executive organs have a broad margin of appreciation in the determination of what is in the public interest. If there is a dispute on the public interest, it is clear that the specialized first instance courts and the courts of appeal are in a better position to resolve disputes. In examining individual applications, the Court shall not interfere with the discretion of the competent public bodies in their determination of the public interest unless such discretion is found manifestly ill-founded or arbitrary. It is for the claimant to prove that the interference does not comply with the public interest (see Mehmet Akdoğan and Others, §§ 34-36).

50.    Article 1 of Law no. 3194 also sets out the purpose of the law as to ensuring that settlements and development therein come into being in compliance with plans, science, hygiene, and environmental conditions. As to the allocation of some immovable properties to the public service during the arrangement of building lands and farmlands, considering that everyone can benefit from public services if some immovable properties are allocated as a road, as is the case with the present case, it has been acknowledged that the interference had a legitimate aim based on the public interest.

i.          Proportionality

(1) General Principles

51.    It must finally be assessed whether there is a proportionality between the aim of the interference with the applicant’s right to property and the means employed to this end.

52.    Pursuant to Article 13 of the Constitution, proportionality, one of the criteria to be taken into consideration in restricting rights and freedoms, arises from the rule of law. As the restriction of rights and freedoms in a state of law is an exceptional authority, this authority could be justified provided that it is used to the extent required by the particular circumstance. Limitation of the rights and freedoms of individuals more than the particular circumstances require is incompatible with the state of law, as it would mean exceeding the authority granted to public authorities (see the Court’s Judgment, no. E. 2013/95, K. 2014/176, 13 November 2014).

53.    The principle of proportionality consists of three sub-principles: capability, necessity and proportionality. Capability means that the envisaged interference must be capable of achieving the intended purpose, necessity describes that an interference must be necessary in order to achieve the intended purpose in other words, it is not possible to achieve the intended purpose by a lighter interference, and proportionality stands for that a reasonable balance that must be struck between the interference against the rights of the individual and the intended purpose (see 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).

54.    Pursuant to the principle of proportionality, a fair balance must be struck between the public interest sought to be achieved in the case of a restriction on property rights of individuals and the rights of the individual. This fair balance is upset when it is established that the applicant bears an individual and excessive burden. In assessing the proportionality of the interference, the Constitutional Court will take into account the importance of the legitimate aim pursued, as well as the burden imposed on the applicant in light of the nature of the interference and the conduct of the applicant and public authorities (see Arif Güven, no. 2014/13966, 15 February 2017, §§ 58, 60).

55.    It is natural for public authorities to have a wide range of discretion to implement their own development policies in complex and challenging subjects, especially in fields such as the development of large cities. However, it is mandatory to inspect whether the specified discretionary power is used in such a way that does not violate the right to property protected under Article 35 of the Constitution and whether the safeguard criteria specified in Article 13 of the Constitution is met (see the Court’s Judgment, no. E. 2012/100, K. 2013/84, 4 July 2013). The fact that the interference with the right to property pursued public interest is not sufficient per se, but it should also be proportional. There is a public interest in allocating private property as a public service area in the zoning implementation. However, this should not impose an excessive and disproportionate burden on the owner (see the Court’s judgment, no. E.2009/31, K.2011/77, 12 May 2011). The fair balance that should be struck between public interest pursued in the allocation of immovable properties to public service and the protection of the applicants' right to property can only be achieved by expropriating the immovable within a reasonable time.

56.    The legislator provided for that the expropriation must be completed within a five-year period due to the fact that zoning implementations cover wide areas and in order to provide adequate funds to the budget. The legislator enjoys discretion in terms of such interferences aiming to take control of the property for the public interest. Within the framework of the said discretion, the owner may be expected to bear these obstacles in order to attain the purpose of public interest for a reasonable and definite period of time on account of the actual and legal obstacles stated earlier. However, in the case of a delay in this period, not only the restrictions in question aggravate the burden imposed on the owner of the property but also the lack of any remedies to redress the damage sustained by the owner due to the prolongation of the restriction period constitutes an excessive burden on the owner (see the Court’s judgment, no. E. 2016/196, K. 2018/34, 28 March 2018).

(2) Application of Principles to the Present Case

57.    The zoning status of the property that the applicant owns is determined as road in the revised implementation zoning plan approved on 5 February 2004. The applicant complains that complains that he has not been able to use his property for many years due to the zoning restrictions and in spite of this fact, his expropriation request has not been accepted by the Municipality. Indeed, the applicant's expropriation request was rejected by the Municipality, and the full remedy action that applicant filed against the Municipality was also rejected. The Inferior courts concluded that there were no grounds to render a decision on the merits of the case, providing that the five-year period granted to the administration in respect of immovable properties, which fall under the scope of Additional Article 1, and whose right to disposition is restricted before the taking into effect of this Law, starts from the date of entry into force of the said Law in accordance with Provisional Article 11 added to Law no. 2942.

58.    In the established case-law of the Supreme Administrative Court applicable prior to the entry into force of the provisional Article 11 added to Law no. 2942, it was acknowledged that the non-expropriation of an immovable property allocated for public service in the zoning plans by the relevant administrations despite the completion of the five-year period following the approval of the zoning plans leads to uncertainty in the exercise of the right to property. In the calculation of the five-year period considered reasonable in the case-law of the Supreme Administrative Court, it is observed that the date final decision is taken as a basis.

59.    Moreover, it is provided for in Article 34 of Law no. 6745 and the Provisional Article 11 of Law no 2942 that the said five-year period will start running for immovable properties falling into the scope of the Additional Article 1 whose disposal was legally restricted before the date of entry into force of this article from the date of entry into force of this article. However, the said provision in the article was annulled by the Constitutional Court on 28 March 2018 due to the fact that it imposed on the owner an excessive burden and disrupted the fair balance that must be struck between the public interest and the owner's right to property.

60.    Even though the immovable property owned by the applicant was allocated as a road in the zoning implementation plan with a scale of 1/1000 approved on 5 February 2004 in the present case; to date, no expropriation has been carried out in respect of the property and no compensation has been paid to the applicant. During this period, the building restriction imposed on the immovable property remained and it was not possible for the applicant to exercise his right to property, to use his property, or to dispose of it.

61.    Consequently, even though approximately fourteen years passed since the approval of the implementation zoning plan, the fact that the immovable, which was allocated for public service as a road in the zoning plan, was not expropriated imposed an excessive burden on the applicant. In these circumstances, it has been concluded that the fair balance between the protection of the applicant's right to property and the public interest was disturbed to the detriment of the applicant, and thus the interference was not proportionate.

62.    Consequently, the Constitutional Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.

3.        Application of Article 50 of Code no. 6216

63.    Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a judgment finding a violation has been rendered, what is required for the resolution of the violation and the consequences thereof shall be ruled on...

(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.”

64.    In the judgment of Mehmet Doğan ([Plenary], no. 2014/8875, 7 June 2018) of the Constitutional Court, general principles as to the determination of how to redress the violation in the event of finding a violation were set out.

65.    In brief, it was emphasized in the judgment of Mehmet Doğan that the source of the violation must first be determined in order to determine the appropriate way of redress. Accordingly, in cases where a court decision leads to a violation, as a rule, it is decided that a copy of the decision be sent to the relevant court for retrial in order to redress the violation and its consequences in accordance with Article 50 § (2) of Code no. 6216 and Article 79 § 1 (a) of the Internal Rules of Court of the Constitutional Court (see Mehmet Doğan, §§ 57, 58).

66.    In the Mehmet Doğan judgment, the Constitutional Court made explanations regarding the obligations of the inferior courts having the duty of retrial and what should be done by the inferior courts in order to remedy the consequences of the violation. Accordingly, in cases where the Constitutional Court orders a retrial in order to remedy the violation found, the inferior courts do not have any discretionary power regarding the acceptance of the existence of the reason for retrial and the annulment of the previous decision, unlike the retrial concept regulated under the relevant procedural laws. Indeed, in case of delivery of a decision of violation, the Constitutional Court, not the inferior courts, which examines the existence of the violation has the discretion regarding the necessity of retrial. The inferior court is obliged to take the necessary actions to remedy the consequences of the violation in line with the judgment finding violation of the Constitutional Court (see Mehmet Doğan, § 59).

67.    In this context, the inferior court must first annul the decision which is found to have violated a fundamental right or freedom or have failed to redress the violation committed against a fundamental right or freedom. The inferior court must carry out to relevant procedure to redress the consequences of the violation found in the Constitutional Court decision following the annulment. Within this framework, in the event that the violation stems from a procedural act or deficiency, the procedural act in question has to be carried out again in such a way that redresses the violation of the said right or for the first time, in case it has not carried out yet. On the other hand, in cases where the Constitutional Court determines that the violation is caused by the administrative act or action itself or the outcome of the decision or judgment of the inferior court, rather than the procedural acts performed or not performed by the court, the inferior court must redress the consequences of the violation by rendering an opposite decision directly, on the basis of the case file as far as possible without performing any procedural acts (see Mehmet Doğan, § 60).

68.    The applicant claimed compensation in respect of pecuniary and non-pecuniary damages.

69.    In the present case, the immovable property of the applicant was allocated to the public service in the zoning plan. In the action for compensation filed by the applicant, the inferior courts found that there was no ground to render a decision on the case on the basis of an article of law entered into force after the action was filed. Therefore, the allocation to the public service of the immovable property subject to the interference in the zoning plan is an administrative act. It is observed that the applicant's right to property was violated due to an administrative act.

70.    In this case, there is a legal interest in retrial in order to redress the consequences of violation of the right to property. Accordingly, the retrial to be conducted aims at redressing the violation and its consequences in accordance with Article 50 § (2) of Code no. 6216. In this context, the inferior courts should award compensation that provides reasonable redress in view of the consequences of the violation. On the other hand, it is at the discretion of the inferior courts specialized in this field to determine the amount of compensation to be awarded. For this reason, a copy of the judgment shall be sent to the 1^st Chamber of the Eskişehir Administrative Court for retrial.

71.    As it has been concluded that the decision to send back the case file to the competent judicial authority for re-trial provided sufficient redress in terms of the consequences of the violation, the compensation claims of the applicant were rejected.

72.    The total court expense of TRY 2,242.10 including the court fee of TRY 262.10 and the counsel fee of TRY 1,980, 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 20 September 2018 that

A.      The application be declared ADMISSIBLE;

B.       The right to property guaranteed under Article 35 of the Constitution was VIOLATED;

C.       A copy of the judgment be SENT to the 1^st Chamber of the Eskişehir Administrative Court (E. 2016/82, K. 2016/1387) for a retrial to redress the consequences of the violation of the right to property;

D.      The applicants’ compensation claims be REJECTED;

E.       The total court expense of TRY 2,242.10 including the court fee of TRY 262.10 and the counsel fee of TRY 1,980 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;

A copy of the judgment be SENT to the Ministry of Justice.