Press Release No: Individual Application 6/17
28.03.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO PROPERTY DUE TO NON-RETURN OF THE PROPERTY ABANDONED TO THE MUNICIPALITY FOR ROAD CONSTRUCTION

On 9 March 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 Süleyman Oktay Uras and Sevtap Uras (no. 2014/11994).

The Facts

The applicants purchased a property in 1990, which was a zoning lot located in the Dikilitaş Neighbourhood of Beşiktaş/İstanbul. They applied to the Municipality for restoration of the three-storey building located on the property. The Municipality stipulated that a total of 154.54 m² of the property would be abandoned to the Municipality free of charge for construction of a road. The applicants accepted the stipulation set by the Municipality on the basis of a contract drawn up by the notary on 18 August 1992. The relevant part of the property was registered in the name of the Municipality on 16 September 1992. The applicants built a five-storey building on the remaining part of the property in accordance with a building licence they were granted on 7 October 1992.

The area of 80 m² of the abandoned land, which had initially been designated as “street”, was turned into “residential area” by an amendment made to the implementary development plan on 9 August 2007 and merged with the adjacent parcel no. 36. On 17 December 2009. Subsequently, the applicants claimed the return of the property and requested that it be merged with the parcel no. 37 owned by them. However, the Municipality rejected their claim.

The suit brought by the applicants before the 6th Chamber of the İstanbul Administrative Court (“the Administrative Court”) for return of the 80 m² land in question was dismissed on 23 September 2011 for being time-barred. The decision was quashed by the 6th Chamber of the Council of State on 21 February 2013. The administrative court abided by the judgment of the Council of State and annulled the administrative action for merging the property with the parcel no. 36 on 29 January 2016, after the date of the individual application. However, the administrative court rejected the claim for return of the property for lack of jurisdiction. The applicants have appealed against the judgment and their appeal is still pending.

The applicants brought an action before the 4th Chamber of the İstanbul Civil Court (“the Civil Court”) requesting the registration of the 80 m² land in their names by ½ shares and the discontinuation of the interference. In its decision dated 24 January 2013, the Civil Court stated that the former owners of the property, who gave consent to the reservation of their property for public services and facilities, did not have right to claim title, and therefore, it was not possible to register the property in the name of them free of charge. It was also reminded in the decision that merging of the parcels by the Municipality was an administrative act. The 5th Civil Chamber of the Court of Cassation upheld the Civil Court’s decision on 12 November 2013. The applicants’ request for rectification of the judgment was rejected by the same Chamber on 26 May 2014.

The Applicants’ Allegations

The applicants maintained that their property had been abandoned to the Municipality for road construction, however, due to a subsequent amendment to the development plan, the property in question was turned into residential area and merged with another parcel. In this respect, they alleged that as the property in question was not returned to them, their right to property was violated. The applicants also complained that merging of the 80 m² property in question with the adjacent parcel no. 36 would damage their own property, as well as, the owner of the parcel no. 36 would derive an improper profit.

The Constitutional Court’s Assessment

 In brief, the Constitutional Court made the following assessments:

The applicants donated their property to the Municipality for road construction. However, due to an amendment made by the Municipality to the development plan, the property was turned into residential area. Therefore, the Municipality violated the obligation set forth in the donation contract. The infringement of this obligation created a legitimate expectation on the part of the applicants for return of the property to them.

The existence of a legitimate expectation does not necessarily require the return of the property to the applicants in any case. However, it requires an assessment as to whether the return of the property is required within the frame of the principle of proportionality. It is seen that the legal issue in the present application has resulted from an established case-law which provides that Article 35 of Law no. 2942 prevents the return of the properties, which are abandoned for the purpose of public services with the consent of their owners, even if they are used for the purposes other than the public interest.

In the present application, it is beyond dispute that depriving the applicants of the right of return imposed a significant burden on them. On the other hand, the Municipality derived significant economic benefit from the property donated for the purpose of public interest. Turning the property into residential area and the economic benefit derived by the Municipality as a result of this process led to consequences that undermined the principle of confidence in the State.

In addition, the public interest in turning the property into residential area is relatively low when compared to the burden imposed on its owner. In other words, not returning the property to its former owner and making it the Municipality’s private property impaired the reasonable balance that must be struck between the public interest and the individual’s right to property to the detriment of its owner. In this case, there was a disproportionate interference with the applicant’s right to property.

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

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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