Press Release No: Individual Application 42/16
17.11.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF FATMA ÇAVUŞOĞLU AND BİLAL ÇAVUŞOĞLU ON THE RIGHT TO PROPERTY

On 28/9/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Fatma Çavuşoğlu and Bilal Çavuşoğlu (application no. 2014/5167) that there had been no breach of the right to property guaranteed in Article 35 of the Constitution.

The Facts

On 14/9/2013, it was reported that there had been illegal hunting at the Muslukbaşı region of the Yuva Plateau located in the Yuva Town of the Elmalı District of Antalya. The gendarmerie officers arriving in the incident scene established in the report of the same date that the applicant, Bilal Çavuşoğlu, and Ş.S. were hunting with the method of headlight hunting at night by a 2005 Mazda double cab (pick up type) truck; that these persons did not have any hunting certificate; that they were hunting out of the period during which hunting was allowed; and that during the control conducted in the truck, there were an automatic hunting rifle without a support block which belonged to the applicant, Bilal Çavuşoğlu, and a wild rabbit which had been recently shot. The law enforcement officers seized the rifle and the wild rabbit.   

In the examination report of 16/9/2013 which was drawn up by the veterinarian, it was specified that the animal found at the incident scene was a male wild rabbit which was two years old; and that this animal had been shot with a hunting rifle according to the bullet marks on its body.

The Forest Administration decided to sentence the applicant to an administrative fine of 1.162 Turkish Liras on account of various violations concerning the hunting ban. By another decision of the same date, the Forest Administration decided that the vehicle and the rifle constituting the subject-matter of the misdemeanours at stake be confiscated.  

The applicants applied to the Elmalı Magistrate’s Court and requested the annulment of the decisions on an administrative sanction and rendered by the Forest Administration. Having made an examination as to the merits of the applications, the Elmalı Magistrate’s Court dismissed the applications with its decision of 10/1/2014.

The applicants objected to this decision. However, by the decision of the Elmalı Criminal Court of General Jurisdiction dated 14/2/2014, it was decided that the objections be finally dismissed on the ground that the decision rendered by the court was in compliance with the procedure and the law.

The Applicants’ Allegations

Having maintained that the applications lodged against the administrative fine imposed by the Forest Administration on account of illegal hunting and against the decisions on confiscation had been dismissed by the Magistrate’s Court; that the decision on dismissal of these applications had not been appealable; and that the remedy of objection provided before the Criminal Court of General Jurisdiction of the same place had been ineffective, the applicants alleged that there had been a breach of the right to legal remedies; that as the truck registered in the name of one of the applicants, Fatma Çavuşoğlu, had been disproportionately confiscated on account of the misdemeanour although the truck had been established not to have any relation with the misdemeanour, there had been a breach of their right to property and of the principle of legality in the offence and penalty. The applicants also requested re-trial.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of these allegations.

The Constitution and the European Convention on Human Rights vest the State with the authorities to control the use of property and the right to utilize the property and to make arrangements in respect thereof. It is in principle sought that the requirements of the principles of legality, legitimate aim and proportionality must be fulfilled in the use of the authority to make arrangements or to control which provides wider discretionary power than the authority to deprive of property.

Within the framework of the hunting procedures and principles established by law, it is aimed to protect and develop the hunting and the wild life. It is undoubted that taking of measures for prevention of the acts and actions leading to damage of or the elimination of the hunting and the wild life resources and imposition of sanctions on those who do not act in accordance with the measures taken and the bans are for the public interest. It has been therefore concluded that the confiscation of the impugned truck for being used in the misdemeanour of “headlight hunting at night by a vehicle casting light” in spite of being banned pursued a legitimate aim.

It is required that the interference with the right to property must not impair the fair balance required to be struck between the individual’s interests and general interest of the public. In assessing the proportionality of the interference, the court will take into consideration on one hand the significance of the legitimate aim requested to be attained and on the other hand the nature of the interference and the behaviours of the applicant and the public authorities and pay regard to the burden imposed on the applicant.

It must be primarily assessed whether or not the applicants were provided with the opportunity to effectively submit their objections that the confiscation was unlawful or arbitrary or unreasonable and present their defence submissions before the responsible authorities.

The applicants explicitly put forth their allegations and objections that the decision on confiscation had been executed in an arbitrary and unfair manner before the judicial authorities. Their allegations and objections were primarily examined by the Magistrate’s Court and then by the Criminal Court of General Jurisdiction upon the objection, and the administrative sanction in the form of confiscation was reviewed by the judicial authorities within the framework of these allegations and objections. It has been accordingly observed that the applications were provided with the opportunity to put forth their objections and defence submissions before the responsible authorities in an effective manner.

On the other hand, it must be established that, in respect of a sanction leading to a severe conclusion such as deprivation of property, there is a casual link between the applicants’ behaviours and the misdemeanour or the criminal act giving rise to the sanction of being deprived of property. The applicant, Fatma Çavuşoğlu, complained of the fact that the truck, which had belonged to her and had not been used in any act by her, was confiscated for being used in a misdemeanour by her husband who was the other applicant. It is found established by a court decision that the vehicle was used in a misdemeanour. However, there is no information or document included in the file and indicating that the applicant, Fatma Çavuşoğlu, had been aware of the fact that this vehicle would be used in illegal hunting. However, the Magistrate’s Court based its assessment on the justification that as Fatma Çavuşoğlu was the wife of Bilal Çavuşoğlu who had performed the misdemeanour, it was not possible, “according to the ordinary course of life”, for her not to know for which aim this vehicle would be used, taking into consideration the time when the incident had taken place.

It is required that the interference with the right to property performed by means of seizure or confiscation is proportionate and does not impair the fair balance required to be struck between the individual’s interests and the public interest. In this scope, it is not sufficient to make a mechanic comparison of value between the material decided to be seized or confiscated and the material subject-matter of the offence in making an examination as to the proportionality. The legal subject-matter and material subject-matter of the offence or the misdemeanour, its impact on the society, the benefit provided for the offender and the impact of the improper conduct of the property owner must also be assessed together. All of these matters must be dealt with in respect of each concrete incident and by paying regard to the particular circumstances of the incident.   

The interest prescribed within the scope of the hunting bans and protected with the misdemeanour leading to the confiscation of the applicants’ vehicle is essentially of an economic nature. In other words, it is not possible to make a real comparison between a vehicle monetary equivalent of which is known and a public interest to which a monetary value cannot be attributed. In this case, given the casual link among the legal subject-matter and significance of the misdemeanour, the interest protected, the applicants’ behaviours and the act of misdemeanour in respect of the incident where the applicants’ vehicle was confiscated for being used in an illegal hunting “by a land vehicle casting light at night”, it has been concluded that the interference with the applicants’ right to property did not impair the fair balance required to be struck between the legitimate aim depending on the public interest pertaining to the protection of hunting and wild life and the applicants’ interests and was proportionate.

For the above-mentioned reasons, the Constitutional Court has held that there was no breach of the right to property guaranteed in 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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