Press Release No: Individual Application 33/16
24.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF NUSRAT KÜLAH ON THE RIGHT TO PROPERTY

The Constitutional Court held, at its plenary meeting on 21/4/2016, with regard to the individual application lodged by Nusrat Külah (application no. 2013/6151) that there had been a breach of the right to property guaranteed in Articles 35 of the Constitution.

The Facts

As the land to which the applicant was a beneficiary was located within the boundaries of the Cultural Park (“Kültür Park”), it was expropriated through reconciliation and was subsequently registered in the name of the Gaziantep Metropolitan Municipality with the registrations performed on 17/7/1998 and 27/4/1198. The Metropolitan Municipal Council amended the zoning plan of the region including the immovable property in question on 20/7/1998. The zoning status of the immovable property was sold to the third parties, as a trading area, through tender on 2/11/1998. Thereupon, a workplace was built on the land, and it was then registered in the land registry as “a two-storey, reinforced concrete market”.

On 13/9/2011, the applicant filed an action for compensation against the Metropolitan Municipality and requested the collection of the price difference between the value of the immovable property, which was transferred as a result of the expropriation and sold to the third parties upon changing its status in the zoning plan, at the date when the action was brought and the expropriation price paid. On 31/5/2012, the court decided to dismiss the case. The decision which had been appealed was upheld by the Court of Cassation on 27/12/2012, and the request for rectification of the judgment was rejected.

On 25/6/2010, some of the co-owners of the immovable property of which the applicant was one of the co-owners filed an action for compensation against the Gaziantep Metropolitan Municipality and requested the return of the immovable property expropriated or redress of its value for not being used in a manner fit for its own purpose. This action was accepted by the court. The decision was appealed before the Court of Cassation which quashed the decision on 20/3/2012 on the ground that no counter-action may be brought against the acts of expropriation performed upon the reconciliation reached with the owner of the immovable property as per Article 8 of the Expropriation Law.

On 8/1/2013, the first instance court decided to persist on the previous decision. Upon the appeal of the decision of persistence (“direnme hükmü”), the General Assembly of Civil Chambers of the Court of Cassation found the decision of persistence, in which the first instance court held that there was no ground for application of Article 8 of the Law no. 2942 in the present incident, appropriate on 27/11/2013 and decided to refer the file to the relevant chamber of the Court of Cassation for examination of the appellate objections pertaining to Articles 22 and 23 of the same Law. On 5/11/2014, the relevant chamber decided to quash the decision.

The proceeding which is still pending upon the quashing judgment has not been concluded yet.

The Applicant’s Allegations

The applicant maintained that his right to property had been breached due to the dismissal of the action for compensation brought as the immovable property expropriated for being turned into a playfield was not used in line with the designated purpose and sold to the third parties after being registered as a trading area upon the amendment made to the zoning plan. He also alleged that although it was requested that the examination of this case be suspended pending outcome of another proceedings in a similar action, the proceeding was concluded, which was in breach of his right to a fair trial; and that the principle of equality was breached on the ground that the action was dismissed in the present incident although another action brought on the same issue had been accepted by the court.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments in its judgement.

In the incident subject-matter of the application, the purpose specified in the decision of public interest is to build a playfield in a park open to general public, and to that end, the zoning plan was arranged and the act of expropriation was performed. Upon the performance of the act of expropriation, the immovable party one of the co-owners of which was the applicant was not turned into a playfield as required by the aim of public interest. It was instead turned into a trading area within about seven months, which may be deemed to be a short period, as from the date when the act of expropriation was performed, and certain part of this property was sold to the third parties. On other words, the administration did not attain the purpose specified in the decision of public interest in respect of the immovable property expropriated. Nor did it indeed use this immovable property for another purpose seeking public interest. Moreover, the administration changed the zoning status of the immovable property which it had expropriated for being a “playfield” in the zoning plan as “the trading area” and thereby created surplus value thanks to this amended made in terms of the expropriated immovable property. However, it deprived the applicant of this surplus value and transferred a certain part of the immovable property to the private persons. 

Accordingly, the administration led to an income-generating transfer of property by means of transferring certain part of the immovable property, which had been duly taken over on the basis of public interest through zoning arrangements and acts of expropriation based on the Constitution and the laws, without concretely attaining the aim of public interest on which such acts were based. 

Therefore, the applicant was deprived of his right to property in breach of the guarantees enshrined in Article 35 of the Constitution as there was an interference with the right to property without a public interest on which the act of expropriation was based. It has been therefore concluded that as to the interference performed through expropriation, the interference with the applicant’s right to property did not achieve a legitimate aim as the aim of public interest was not attained in a concrete manner.

It has been consequently held by the Constitutional Court that there was a breach of the right to property which is 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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