Press Release No: Individual Application 22/18


On 24 May 2018, the Second Section of the Constitutional Court found a violation of the right to access to a court within the scope of the right to a fair trial, which is safeguarded by Article 36 of the Constitution, in the individual application lodged by Sema Calgav and Oya Yamak (no. 2015/13950).

The Facts

The applicants are among the joint owners of an immovable property.

In the master development and implementary development plans, this immovable property is allocated as an area of petrol station. 

Having completed all licensing procedures required by the zoning legislation, the applicants and the co-owners leased out the immovable property to a company which engaged in the business of petroleum products and which would operate a petrol station on the immovable property.

Another company operating a petrol station in the same neighbourhood brought an action before the administrative court against the relevant municipalities and requested annulment of the development plan insofar as it related to the allocation of the immovable property as an area of petrol station. The lease-holder company joined the proceedings as an intervening party, on the part of the defendant administrations.

The incumbent court annulled the impugned development plans. Upon the appeal of the defendant administrations and the intervening party, the Council of State quashed the decision. The plaintiff company requested the rectification of the Council of State’s judgment quashing the first instance decision. Thereupon, the relevant chamber of the Council of State examined the request and upheld the first instance decision.

One of the applicants applied to the relevant metropolitan municipality and requested to be informed whether an action for annulment of the development plan had been brought with regard to her immovable property and, if any, to be informed of the outcome of the proceedings.

In its reply letter, the municipality notified the applicant that the development plans with regard to her immovable property were annulled by virtue of a judicial decision; that therefore, this plot of land was not covered by any development plan; however, the re-planning process had been initiated and was still pending.   

The Applicants’ Allegations

The applicants maintained that they −as the owners of the immovable− were not notified of the action brought by the third parties against the administration for the annulment of the development plan pertaining to their immovable and were not thereby ensured to join the proceedings. They accordingly alleged that their right to access to a court was violated.

The Constitutional Court’s Assessment

During the proceedings heard in the administrative jurisdiction whereby the lawfulness of an administrative act and action is examined, ensuring not only formal but also effective participation of the claimant or any third party having legal interest in conclusion of the action in the proceedings carries great significance in terms of affording the safeguards inherent in the right to a fair trial.

In the present case, the applicants would be directly affected by the outcome of the proceedings and accordingly have a legal interest in joining the proceedings.

It has been accordingly concluded that due to the inferior courts’ failure to perform the procedural obligation as to notice of proceedings, the applicants were deprived of the opportunity to submit their arguments before the court, which imposed an excessive and disproportionate burden on them. Therefore, the interference with the applicants’ right to access to a court was found disproportionate.

 For the reasons explained above, the Court found a violation of the right to access to a court within the scope of the right to a fair trial, which is safeguarded by Article 36 of the Constitution.

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

The Constitutional Court of the Republic of Turkey © 2019